machine or device. The term “copies” includes the material object, other than a
phonorecord, in which the work is first fixed.^8The language of the definition raises two issues concerning whether images^9 of
transmitted data in RAM qualify as “copies.” First, depending upon where the data is in transit
through the Internet, only a few packets – or indeed perhaps only a single byte – of the data may
reside in a given RAM at a given time. For example, the modem at the receiving and
transmitting computers may buffer only one or a few bytes of data at a time. A node computer
may receive only a few packets of the total data, the other packets being passed through a
different route and therefore a different node computer’s RAM. Should the law consider these
partial images a “copy” of the work? Should the outcome turn on whether all or most of the
packets of data comprising the work pass through a given RAM, or only a portion? How can
interim partial images of data stored in RAM be deemed a “copy” of a work, in the case where
there 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 of
President Clinton’s Information Infrastructure Task Force (referred to herein as the “NII White
Paper”) implicitly suggests that at least interim, partial copies of a work created in RAM in
interim 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 result
in a fixation, a work is not fixed by virtue of the transmission alone. Therefore,
“live” transmissions via the NII [National Information Infrastructure] will not
meet the fixation requirement, and will be unprotected by the Copyright 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 data
stored in RAM are sufficiently “permanent” to be deemed “copies” for copyright purposes. The
definition of “copies” speaks of “material objects,” suggesting an enduring, tangible embodying
medium for a work. With respect to an image of data stored in RAM, is the RAM itself to be
considered the “material object”? The image of the data in RAM disappears when the computer
is turned off. In addition, most RAM is “dynamic” (DRAM), meaning that even while the
computer is on, the data must be continually refreshed in order to remain readable. So the data is
in every sense “fleeting.” Is its embodiment in RAM sufficiently permanent to be deemed a
“copy”?
The legislative history of the Copyright Act of 1976 would suggest that data stored in
RAM is not a “copy.” As noted above, a “copy” is defined as a material object in which a work
is “fixed.” The statute defines a work to be “fixed in a tangible medium of expression when its
(^8) 17 U.S.C. § 101.
(^9) 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” for
copyright law purposes is the question at issue.
(^10) Information Infrastructure Task Force, “Intellectual Property and the National Information Infrastructure: The
Report of the Working Group on Intellectual Property Rights” at 27 (1995).