Advanced Copyright Issues on the Internet - Fenwick & West LLP

terminal emulation program is not sufficient to prove that a “copy” has been made. 18 Moreover,an earlier Ninth Circuit decision in the case of Lewis Galoob Toys, Inc. v. Nintendo of America,Inc. 19 implied that an image of data stored in RAM may not qualify as a “copy.” At issue in thatcase was whether a device that altered certain bytes of data of a video game “on the fly” as suchinformation passed through RAM created an infringing derivative work. The court held that itdid not, because although a derivative work need not be fixed, it must have some “form” or“permanence,” which were lacking in the enhanced displays created by the device. The courtstated, however, that even if a derivative work did have to be fixed, the changes in the displayedimages wrought on the fly by the accused device did not constitute a fixation because thetransitory images it created were not “embodied” in any form.Notwithstanding these earlier decisions, however, a great many courts have nowfollowed MAI, 20 and some earlier decisions also support its conclusion. 21 Although the opinion18192021Id. at 236.964 F.2d 965 (9th Cir. 1992).See DocMagic, Inc. v. Ellie Mae, Inc., 2010 U.S. Dist. LEXIS 108628 (N.D. Cal. Oct. 12, 2010) at *60-61(unauthorized loading of software into RAM constitutes an act of copying and thus of infringement); Apple,Inc. v. Psystar Corp., 673 F. Supp. 2d 931, 935 (N.D. Cal. 2009) (turning on computers that loaded into RAMcopies of Apple’s Mac OS X operating system containing unauthorized modifications constitute directinfringement of Apple’s reproduction right); Quantum Sys. Integrators, Inc. v. Sprint Nextel Corp., 2009 U.S.App. LEXIS 14766 at *18-19 (4 th Cir. July 7, 2009) (loading of software into RAM from unauthorized copieson hard disk was sufficiently fixed for purposes of copyright infringement); SimplexGrinnell LP v. IntegratedSys. & Power, Inc., 2009 U.S. Dist. LEXIS 30657 at *42 (S.D.N.Y. Apr. 8, 2009) (embodiment requirement issatisfied when a program is loaded for use into a computer’s RAM and the duration requirement is satisfiedwhen the program remains in RAM for several minutes or until the computer is shut off); MDY Industries, LLCv. Blizzard Entertainment, Inc., 2008 U.S. Dist. LEXIS 53988 (D. Ariz. July 14, 2008) (under MAI, copyingsoftware into RAM constitutes making a “copy” within the purview of copyright law, so that if a person is notauthorized by the copyright holder through a license or by law (e.g. Section 117) to copy the software to RAM,the person commits copyright infringement when using the software in an unauthorized way); TicketmasterL.L.C. v. RMG Technologies, Inc., 507 F. Supp. 2d 1096, 1005 (C.D. Cal. 2007) (copies of web pages storedin a computer’s cache or RAM upon a viewing of the web page fall within the <strong>Copyright</strong> Act’s definition of a“copy”); Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Inc., 2004 U.S. Dist.LEXIS 12391 at *11-12 (D. Mass. July 2, 2004) (unauthorized copying of a program into RAM for use of theprogram infringes the copyright in the program); Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d737, 745 (D. Md. 2003) (“Unauthorized electronic transmission of copyrighted text, from the memory of onecomputer into the memory of another, creates an infringing ‘copy’ under the <strong>Copyright</strong> Act.”); StenographL.L.C. v. Bossard Assocs., 144 F.3d 96 (D.C. Cir. 1998) (holding that an infringing copy of a computerprogram was made when that program was loaded into RAM upon boot up and used for its principal purposes);Triad Sys. v. Southeastern Express Co., 64 F.3d 1330 (9th Cir. 1995), cert. denied, 116 S. Ct. 1015 (1996);Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 53 U.S.P.Q.2d 1425 (D. Utah 1999); TiffanyDesign, Inc. v. Reno-Tahoe Specialty, Inc., 55 F. Supp. 1113 (D. Nev. 1999); Marobie-FL Inc. v. NationalAssociation of Fire Equipment Distributors, 45 U.S.P.Q.2d 1236 (N.D. Ill. 1997); <strong>Advanced</strong> Computer Servs.v. MAI Sys., 845 F. Supp. 356 (E.D. Va. 1994); see also 2 M. Nimmer & D. Nimmer, Nimmer on <strong>Copyright</strong> §8.08[A][1], at 8-114 (1999) (suggesting that RAM copies are fixed).See Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 260 (5th Cir. 1988) (“the act of loading a program froma medium of storage into a computer’s memory creates a copy of the program”); Apple Computer, Inc. v.Formula Int’l, 594 F. Supp. 617, 621 (C.D. Cal. 1984) (noting that copying a program into RAM creates afixation, albeit a temporary one); Telerate Sys. v. Caro, 8 U.S.P.Q.2d 1740 (S.D.N.Y. 1988) (holding that thereceipt of data in a local computer constituted an infringing copy).- 17 -