Advanced Copyright Law on the Internet

embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently
permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a
period of more than transitory duration.”^11 The legislative history states:

[T]he definition of “fixation” would exclude from the concept purely evanescent

or transient reproductions such as those projected briefly on a screen, shown

electronically on a television or other cathode ray tube, or captured momentarily

in the “memory” of a computer.^12

This language suggests that images of data temporarily stored in RAM do not constitute
“copies.”^13

Several cases, however, have held to the contrary. The leading case is MAI Systems
Corp. v. Peak Computer, Inc.,^14 which held that loading an operating system into RAM for
maintenance 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 unclear
whether that decision would support a legal principle that any storage of a copyrighted work in
RAM, no matter how transiently, constituted a “copy” within the purview of copyright law, for
the 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 few
seconds). In addition, the court emphasized that while in RAM, output of the program was
viewed by the user, which confirmed the conclusion that the RAM “copy” was capable of being
perceived with the aid of a machine:

[B]y showing that Peak loads the software into the RAM and is then able to view

the system error log and diagnose the problem with the computer, MAI has

adequately shown that the representation created in the RAM is “sufficiently

permanent or stable to permit it to be perceived, reproduced, or otherwise

communicated for a period of more than transitory duration.”^16

In 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 the
case and whether the court really understood the issue, contains language that may suggest that

(^11) 17 U.S.C. § 101 (definition of “fixed in a tangible medium of expression”).
(^12) H.R. Rep. No. 94-1476, at 53 (1976), reprinted in U.S.C.C.A.N. 5659, 5666.
(^13) But see R. Nimmer, Information Law ¶ 4.02[2], at 4-6 (2001) (“This language refers to subject matter
protection and not whether particular acts create an infringing copy. The exclusion of transient works refers to
the work itself, not a copy. It presumes that there was no copy of the work other than the transient display or
memory.”)
(^14) 991 F.2d 511 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 672 (1994).
(^15) Id. at 518.
(^16) 991 F.2d at 518.
(^17) 45 F.3d 231 (7th Cir. 1995).