Advanced Copyright Issues on the Internet - Fenwick & West LLP

embodiment in a copy or phonorecord, by or under the authority of the author, is sufficientlypermanent or stable to permit it to be perceived, reproduced, or otherwise communicated for aperiod of more than transitory duration.” 11 The legislative history states:[T]he definition of “fixation” would exclude from the concept purely evanescentor transient reproductions such as those projected briefly on a screen, shownelectronically on a television or other cathode ray tube, or captured momentarilyin the “memory” of a computer. 12This language suggests that images of data temporarily stored in RAM do not constitute“copies.” 13Several cases, however, have held to the contrary. The leading case is MAI SystemsCorp. v. Peak Computer, Inc., 14 which held that loading an operating system into RAM formaintenance purposes by an unlicensed third party maintenance organization created an illegal“copy” of the program fixed in RAM. 15 When the MAI decision first came down, it was unclearwhether that decision would support a legal principle that any storage of a copyrighted work inRAM, no matter how transiently, constituted a “copy” within the purview of copyright law, forthe Ninth Circuit’s opinion in MAI seemed somewhat qualified. The court in MAI noted that the“copy” of the operating system was stored in RAM for several minutes (rather than only a fewseconds). In addition, the court emphasized that while in RAM, output of the program wasviewed by the user, which confirmed the conclusion that the RAM “copy” was capable of beingperceived with the aid of a machine:[B]y showing that Peak loads the software into the RAM and is then able to viewthe system error log and diagnose the problem with the computer, MAI hasadequately shown that the representation created in the RAM is “sufficientlypermanent or stable to permit it to be perceived, reproduced, or otherwisecommunicated for a period of more than transitory duration.” 16In addition, a decision from the Seventh Circuit handed down shortly after MAI, NLFC,Inc. v. Devcom Mid-Am., Inc., 17 although somewhat unclear on both the facts involved in thecase and whether the court really understood the issue, contains language that may suggest thatmerely proving that the defendant has remotely accessed the plaintiff’s software through a1112131415161717 U.S.C. § 101 (definition of “fixed in a tangible medium of expression”).H.R. Rep. No. 94-1476, at 53 (1976), reprinted in U.S.C.C.A.N. 5659, 5666.But see R. Nimmer, Information Law 4.02[2], at 4-6 (2001) (“This language refers to subject matterprotection and not whether particular acts create an infringing copy. The exclusion of transient works refers tothe work itself, not a copy. It presumes that there was no copy of the work other than the transient display ormemory.”)991 F.2d 511 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 672 (1994).Id. at 518.991 F.2d at 518.45 F.3d 231 (7th Cir. 1995).- 16 -