merely proving that the defendant has remotely accessed the plaintiff’s software through a
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 that
case was whether a device that altered certain bytes of data of a video game “on the fly” as such
information passed through RAM created an infringing derivative work. The court held that it
did 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 court
stated, however, that even if a derivative work did have to be fixed, the changes in the displayed
images wrought on the fly by the accused device did not constitute a fixation because the
transitory images it created were not “embodied” in any form.
Notwithstanding these earlier decisions, however, a great many courts have now followed
MAI,^20 and some earlier decisions also support its conclusion.^21 Although the opinion in one of
(^18) Id. at 236.
(^19) 964 F.2d 965 (9th Cir. 1992).
(^20) See Carson v. Verismart Software, 2012 U.S. Dist. LEXIS 4166 at 8-9 (N.D. Cal. Mar. 27, 2012) (pleading
alleging that defendants were “using” plaintiff’s software without authorization was sufficient to state a
copyright claim because the software had to be loaded into RAM to run, which constitutes the making of a fixed
copy under MAI); Costar Realty Information, Inc. v. Field, 2010 U.S. Dist. LEXIS 135016 at 19 (D. Md. Dec.
20, 2010) (copies of web pages stored automatically in a computer’s cache or RAM upon a viewing of the web
page fall within the definition of “copy”); DocMagic, Inc. v. Ellie Mae, Inc., 745 F. Supp. 2d 1148 (N.D. Cal.
2010) (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
RAM copies of Apple’s Mac OS X operating system containing unauthorized modifications constitute direct
infringement of Apple’s reproduction right); Quantum Sys. Integrators, Inc. v. Sprint Nextel Corp., 2009 U.S.
App. LEXIS 14766 at 18-19 (4th Cir. July 7, 2009) (loading of software into RAM from unauthorized copies
on hard disk was sufficiently fixed for purposes of copyright infringement); SimplexGrinnell LP v. Integrated
Sys. & Power, Inc., 2009 U.S. Dist. LEXIS 30657 at 42 (S.D.N.Y. Apr. 8, 2009) (embodiment requirement is
satisfied when a program is loaded for use into a computer’s RAM and the duration requirement is satisfied
when the program remains in RAM for several minutes or until the computer is shut off); MDY Industries, LLC
v. Blizzard Entertainment, Inc., 2008 U.S. Dist. LEXIS 53988 (D. Ariz. July 14, 2008) (under MAI, copying
software into RAM constitutes making a “copy” within the purview of copyright law, so that if a person is not
authorized 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); Ticketmaster
L.L.C. v. RMG Technologies, Inc., 507 F. Supp. 2d 1096, 1005 (C.D. Cal. 2007) (copies of web pages stored in
a computer’s cache or RAM upon a viewing of the web page fall within the Copyright 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 the
program infringes the copyright in the program); Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d
737, 745 (D. Md. 2003) (“Unauthorized electronic transmission of copyrighted text, from the memory of one
computer into the memory of another, creates an infringing ‘copy’ under the Copyright Act.”); Stenograph
L.L.C. v. Bossard Assocs., 144 F.3d 96 (D.C. Cir. 1998) (holding that an infringing copy of a computer
program 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); Tiffany
Design, Inc. v. Reno-Tahoe Specialty, Inc., 55 F. Supp. 1113 (D. Nev. 1999); Marobie-FL Inc. v. National
Association of Fire Equipment Distributors, 45 U.S.P.Q.2d 1236 (N.D. Ill. 1997); Advanced Computer Servs. v.