Advanced Copyright Issues on the Internet - Fenwick & West LLP

ead MAI Systems as holding that, as a matter of law, loading a program into aform of RAM always results in copying. 33Turning to the facts of the case at hand, the Second Circuit ruled that, although theembodiment requirement was satisfied by the buffers because the copyrighted works could becopied from them, 34 the duration requirement had not been satisfied. The court noted that no bitof data remained in any buffer for more than a fleeting 1.2 seconds, unlike the data in cases likeMAI, which remained embodied in the computer’s RAM until the user turned the computer off. 35“While our inquiry is necessarily fact-specific, and other factors not present here may alter theduration analysis significantly, these facts strongly suggest that the works in this case areembodied in the buffer for only a ‘transitory’ period, thus failing the duration requirement.” 36Accordingly, the acts of buffering in the operation the RS-DVR did not create “copies” forwhich Cablevision could have direct liability. 373. The WIPO Treaties & the European <strong>Copyright</strong> Directive Are UnclearWith Respect to Interim “Copies”The language of two copyright treaties adopted during 1996 by the World IntellectualProperty Organization (WIPO) 38 leaves open the issue of whether transitory images of datastored in RAM constitute “copies.” 39Directive(a) Introduction to the WIPO Treaties & the European <strong>Copyright</strong>The WIPO treaties were adopted as a result of the Diplomatic Conference on Certain<strong>Copyright</strong> and Neighboring Rights Questions hosted by WIPO in Geneva on December 2-20,1996. More than 700 delegates from approximately 160 countries attended this Conference,which was aimed at tightening international copyright law to respond to issues arising fromworldwide use of the Internet. The Conference was also designed to bring existing legislation oncopyrights more in line with the provisions of the Trade Related Intellectual Property (TRIPS)33343536373839Id. at *16, 18.Id. at *22. “The result might be different if only a single second of a much longer work was placed in thebuffer in isolation. In such a situation, it might be reasonable to conclude that only a minuscule portion of awork, rather than ‘a work’ was embodied in the buffer. Here, however, where every second of an entire workis placed, one second at a time, in the buffer, we conclude that the work is embodied in the buffer.” Id. at *22-23.Id. at *23.Id.Id. at *24.WIPO is a United Nations organization which handles questions of copyrights and trademarks.The treaties enter into force three months after 30 instruments of ratification or accession by member Stateshave been deposited with the Director General of WIPO.- 20 -