Advanced Copyright Issues on the Internet - Fenwick & West LLP

machine or device. The term “copies” includes the material object, other than aphonorecord, in which the work is first fixed. 8The language of the definition raises two issues concerning whether images 9 oftransmitted data in RAM qualify as “copies.” First, depending upon where the data is in transitthrough the Internet, only a few packets – or indeed perhaps only a single byte – of the data mayreside in a given RAM at a given time. For example, the modem at the receiving andtransmitting computers may buffer only one or a few bytes of data at a time. A node computermay receive only a few packets of the total data, the other packets being passed through adifferent route and therefore a different node computer’s RAM. Should the law consider thesepartial images a “copy” of the work? Should the outcome turn on whether all or most of thepackets of data comprising the work pass through a given RAM, or only a portion? How caninterim partial images of data stored in RAM be deemed a “copy” of a work, in the case wherethere is no point in time at which the entire work is available in a single RAM?The White Paper published by the Working Group on Intellectual Property Rights ofPresident Clinton’s Information Infrastructure Task Force (referred to herein as the “NII WhitePaper”) implicitly suggests that at least interim, partial copies of a work created in RAM ininterim node computers during transmission may not themselves constitute a “fixed” copy:A transmission, in and of itself, is not a fixation. While a transmission may resultin a fixation, a work is not fixed by virtue of the transmission alone. Therefore,“live” transmissions via the NII [National Information Infrastructure] will notmeet the fixation requirement, and will be unprotected by the <strong>Copyright</strong> Act,unless the work is being fixed at the same time as it is being transmitted. 10The second general issue raised by the definition of “copies” is whether images of datastored in RAM are sufficiently “permanent” to be deemed “copies” for copyright purposes. Thedefinition of “copies” speaks of “material objects,” suggesting an enduring, tangible embodyingmedium for a work. With respect to an image of data stored in RAM, is the RAM itself to beconsidered the “material object”? The image of the data in RAM disappears when the computeris turned off. In addition, most RAM is “dynamic” (DRAM), meaning that even while thecomputer is on, the data must be continually refreshed in order to remain readable. So the data isin every sense “fleeting.” Is its embodiment in RAM sufficiently permanent to be deemed a“copy”?The legislative history of the <strong>Copyright</strong> Act of 1976 would suggest that data stored inRAM is not a “copy.” As noted above, a “copy” is defined as a material object in which a workis “fixed.” The statute defines a work to be “fixed in a tangible medium of expression when its891017 U.S.C. § 101.The word “image” is being used here to refer to an image of data stored in RAM to avoid use of the word“copy,” which is a legal term of art. Whether an image of data in RAM should be deemed a “copy” forcopyright law purposes is the question at issue.Information Infrastructure Task Force, “Intellectual Property and the National Information Infrastructure: TheReport of the Working Group on Intellectual Property Rights” at 27 (1995).- 15 -