Corp. v. Peak Computer, Inc., 991 F.2d 511, 518-19 (9th Cir. 1993). When the
computer owner downloads copyrighted software, it possesses the software,
which then functions in the service of the computer or its owner, and the copying
is no longer of a transitory nature. See, e.g., Vault Corp. v. Quaid Software, Ltd.,
847 F.2d 255, 260 (5th Cir. 1988). “Transitory duration” is thus both a qualitative
and quantitative characterization. It is quantitative insofar as it describes the
period during which the function occurs, and it is qualitative in the sense that it
describes the status of transition. Thus, when the copyrighted software is
downloaded onto the computer, because it may be used to serve the computer or
the computer owner, it no longer remains transitory. This, however, is unlike an
ISP, which provides a system that automatically receives a subscriber’s infringing
material and transmits it to the Internet at the instigation of the subscriber.^27A 2008 decision of the Second Circuit, The Cartoon Network LP v. CSC Holdings,
Inc.,^28 addressed the issue of RAM copying in considerable detail, ruling that buffer copies in
RAM made by Cablevision Systems Corp. in the course of converting channels of cable
programming from the head end feed into a format suitable for storage of individual programs by
a network digital video recording service upon customer demand were not fixed for sufficient
duration to constitute “copies.”^29 Cablevision made the buffer copies in conjunction with
offering its “Remote Storage” Digital Video Recorder (RS-DVR) service that enabled
Cablevision customers to record copies of particular programs, like a normal DVR, but to store
the recorded programs on Cablevision’s servers rather than on a DVR device at their homes.
Cablevision created buffer copies, one small piece at a time, of the head end programming in two
buffers – a primary ingest buffer and a Broadband Media Router (BMR) buffer – even if no
customer requested that a copy of particular programming be stored on its behalf in the RS-DVR
service. The primary ingest buffer held no more than 0.1 seconds of each incoming channel’s
programming at any moment. The data buffer in the BMR held no more than 1.2 seconds of
programming at any time. The plaintiffs argued that these buffer copies made Cablevision a
direct infringer of their copyrights.^30
The lower court found Cablevision a direct infringer largely in reliance on MAI and cases
following it.^31 The Second Circuit, however, reversed. The court noted that to satisfy the
statutory definition of “copies,” two requirements must be met – an “embodiment” requirement
(embodiment in a tangible medium from which it can be perceived or reproduced) and a
“duration” requirement (embodiment for a period of more than transitory duration). The Second
(^27) Id.
(^28) 536 F.3d 121 (2d Cir. 2008), cert. denied sub nom. CNN, Inc. v. CSC Holdings, Inc., 557 U.S. 946 (2009).
(^29) Id. at 129-30.
(^30) Id. at 123-24, 127.
(^31) Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp., 478 F. Supp. 2d 607, 621-22 (S.D.N.Y. 2007).