ordinary activities on the Internet, such as browsing, caching, and access of information, may fall
within the copyright holder’s monopoly rights.
- The Ubiquitous Nature of “Copies” on the Internet
Under current technology, information is transmitted through the Internet using a
technique known broadly as “packet switching.” Specifically, data to be transmitted through the
network is broken up into smaller units or “packets” of information, which are in effect labeled
as to their proper order. The packets are then sent through the network as discrete units, often
through multiple different paths and often at different times. As the packets are released and
forwarded through the network, each “router” computer makes a temporary (ephemeral) copy of
each packet and transmits it to the next router according to the best path available at that instant,
until it arrives at its destination. The packets, which frequently do not arrive in sequential order,
are then “reassembled” at the receiving end into proper order to reconstruct the data that was
sent.^5 Thus, only certain subsets (packets) of the data being transmitted are passing through the
RAM of a node computer at any given time, although a complete copy of the transmitted data
may be created and/or stored at the ultimate destination computer, either in the destination
computer’s RAM, on its hard disk, or in portions of both.
To illustrate the number of interim “copies,” in whole or in part, that may be made when
transmitting a work through the Internet, consider the example of downloading a picture from a
website. During the course of such transmission, no less than seven interim copies of the picture
may be made: the modem at the receiving and transmitting computers will buffer each byte of
data, as will the router, the receiving computer itself (in RAM), the Web browser, the video
decompression chip, and the video display board.^6 These copies are in addition to the one that
may be stored on the recipient computer’s hard disk.^7
- Whether Images of Data Stored in RAM Qualify as “Copies”
Do these interim and final copies of a work (many of which are only partial) being
transmitted through the Internet qualify as “copies” within the meaning of United States
copyright law? The copyright statute defines “copies” as:
material objects, other than phonorecords, in which a work is fixed by any method
now known or later developed, and from which the work can be perceived,
reproduced, or otherwise communicated, either directly or with the aid of a(^5) If any packet is lost along the way, the originating computer automatically resends it, likely along a different
path than the lost packet was originally sent.
(^6) Mark A. Lemley, “Dealing with Overlapping Copyrights on the Internet,” 22 U. Dayton L. Rev. 547, 555
(1997).
(^7) Even if a complete copy of the picture is not intentionally stored on the recipient computer’s hard disk, most
computers enhance performance of their memory by swapping certain data loaded in RAM onto the hard disk to
free up RAM for other data, and retrieving the swapped data from the hard disk when it is needed again. Some
of this swapped data may be left on the hard disk when the computer is turned off, even though the copy in
RAM has been destroyed.