these decisions suggests that only copies that exist for several minutes should constitute a “copy”
within the purview of copyright law,^22 the others appear not to focus on how transitorily an
image may be stored in RAM in ruling that such an image constitutes a “copy” for purposes of
copyright law.
One of these decisions, Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc.,^23 was
the first decision to focus on whether the act of browsing on the Internet involves the creation of
“copies” that implicate the copyright owner’s rights. In that case, the court, citing the MAI
decision, flatly stated, “When a person browses a website, and by so doing displays the
[copyrighted material], a copy of the [copyrighted material] is made in the computer’s random
access memory (RAM), to permit viewing of the material. And in making a copy, even a
temporary one, the person who browsed infringes the copyright.”^24 This decision, although quite
direct in its holding, appears to address only the final “copy” that is made in the RAM of a Web
surfer’s computer in conjunction with viewing a Web page through a browser. It does not
address the trickier issue of whether whole or partial interim copies made in RAM of node
computers during the course of transmission through the Internet also constitute “copies” within
the purview of a copyright owner’s copyright rights.
However, a 2004 decision from the Fourth Circuit, CoStar v. Loopnet,^25 held that
transient copies made by an OSP acting merely as a conduit to transmit information at the
instigation of others does not create fixed copies sufficient to make it a direct infringer of
copyright. “While temporary electronic copies may be made in this transmission process, they
would appear not to be ‘fixed’ in the sense that they are ‘of more than transitory duration,’ and
the ISP therefore would not be a ‘copier’ to make it directly liable under the Copyright Act.”^26
The court drew a distinction between the final copy of a work made in the RAM of the ultimate
user’s computer, and the transient copies made by an OSP in the course of transmitting such
copies:
In concluding that an ISP has not itself fixed a copy in its system of more than
transitory duration when it provides an Internet hosting service to its subscribers,
we do not hold that a computer owner who downloads copyrighted software onto
a computer cannot infringe the software’s copyright. See, e.g., MAI SystemsMAI Sys., 845 F. Supp. 356 (E.D. Va. 1994); see also 2 M. Nimmer & D. Nimmer, Nimmer on Copyright §
8.08[A][1], at 8-114 (1999) (suggesting that RAM copies are fixed).(^21) See Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 260 (5th Cir. 1988) (“the act of loading a program from
a medium of storage into a computer’s memory creates a copy of the program”); Apple Computer, Inc. v.
Formula Int’l, 594 F. Supp. 617, 621 (C.D. Cal. 1984) (noting that copying a program into RAM creates a
fixation, albeit a temporary one); Telerate Sys. v. Caro, 8 U.S.P.Q.2d 1740 (S.D.N.Y. 1988) (holding that the
receipt of data in a local computer constituted an infringing copy).
(^22) Advanced Computer Services v. MAI Systems, 845 F. Supp. 356, 363 (E.D. Va. 1994).
(^23) 53 U.S.P.Q.2d 1425 (D. Utah 1999).
(^24) Id. at 1428.
(^25) 373 F.3d 544 (4th Cir. 2004).
(^26) Id. at 551.