Writing in frost on a window pane: E-mail and chatting on RAM and copyright fixation

Journal of the Copyright Society of the U.S.A.

Volumn 43, Issue 3, 1996, Pages 237-277

  Brandriss, Ira L ^a  

^a NONE

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EID: 12844279523     PISSN: 08863520     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (162)

1. Federal copyright law accords protection to "original works of authorship fixed in any tangible medium of expression" 17 U.S.C. § 102 (emphasis added).
2. A closer look at the nature of e-mail in RAM appears infra, notes 124-125 and accompanying text. Briefly put, "The RAM is [the computer's] temporary working memory. It is dynamic and transient, and whatever is stored in it disappears when power goes off." Nina Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators, 13 CARDOZO ARTS & ENT. L.J. 345, 353 (1995). The description characterizes only what is known as "volatile" random access memory, the type we will refer to simpy as "RAM" throughout this Note. There is also a type of RAM that is non-volatile, where the "contents are retained even when the hardware is powered off."
3. Maureen A. O'Rourke, Proprietary Rights in Digital Data: The future of copyright and contract law in a networked world, 41 FED. B. NEWS & J. 511, 512 n.24 (Aug. 1994).
4. See 17 U.S.C. § 101 (definition of "fixed" stipulating that fixation must be "by or under the authority of the author"). Another scenario implicating the same issue would be a case where your friend saved the communication on disk before turning off her computer. A related issue may be raised as to whether the sender of e-mail, even when in RAM, has not impliedly consented to the recipient's preservation of the correspondence. See O'Rourke, supra note 2, at 514.
5. Electronic chatting will also be discussed in more detail below, infra note 126 and accompanying text. Suffice it for now to explain that "users may 'chat' with each other in real time by sending messages over the [information] network. Generally, these messages are stored in volatile RAM." O'Rourke, supra note 2, at 513 n.25.
6. See infra notes 128-130 and accompanying text. Given the common tendency of e-mail correspondents to save copies of their messages in more permanent form, one commentator has suggested the our question with regard to this form of authorship may be of "minimal" significance. O'Rourke, supra note 2, at 513. But others have seen the subject as one of significant consequence, and discussion of the issue has been joined, as we shall see, by a number of formidable scholars.
7. See infra notes 40-42 and accompanying text.
8. See infra notes 50-63, 75-76 and accompanying text.
9. See infra notes 94-96 and accompanying text.
10. David Post, New Wine, Old Bottles: The Evanescent Copy, THE AMERICAN LAWYER, 103, 103, May 1995.
11. See also John Kennedy & Mary Rasenberger, Does Cyberspace Merit a New Legal Order?, NEW YORK LAW JOURNAL, Oct. 4, 1995;
12. Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466, 1468 n.2 (1995).
13. 17 U.S.C. § 101.
14. U.S. CONST. art. I, § 8, cl. 8.
15. See generally MELVILLE B. NIMMER & DAVID NIMMER, 1 NIMMER ON COPYRIGHT § 1.07-1.08 (1995).
16. Id., § 1.08[B].
17. Id.
18. Id. § 1.08[C].
19. 17 U.S.C. §§ 101-803.
20. Id. at § 102(a).
21. See CRAIG JOYCE ET. AL., COPYRIGHT LAW 60-107 (3d ed. 1994).
22. 17 U.S.C. § 101.
23. Cf. White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 17 (1908): A musical composition is an intellectual creation which first exists in the mind of the composer . . . . It is not susceptible of being copied until it has been put into a form which others can see and read. The statute has not provided for the protection of the intellectual conception apart from the thing protected, however meritorious such conception may be, but has provided for the making and filing of a tangible thing . . . . (emphasis added).
24. The treatise writers have not articulated this concept explicitly, although a slight nuance in its direction may be implied in their elaborations on the notion of creation and fixation. See, e.g., HOWARD ABRAMS, 1 LAW OF COPYRIGHT § 8.02[B] (1995) (stating that "a work is 'created' for purposes of the Copyright Act, not when it is mentally conceived by the author but when it is fixed") (emphasis added).
25. Andrien v. Southern Ocean County Chamber of Commerce, 927 F.2d 132, 134 (3d Cir. 1991).
26. ABRAMS, supra note 21, at § 8.02[B].
27. WILLIAM F. PATRY, 1 COPYRIGHT LAW AND PRACTICE 169 n.200 (1994). Still another way of looking at the "proof" function of fixation is the view that the requirement "is necessary in order to identify the work and avoid confusion with the offerings of others."
28. GUIDE TO THE BERNE CONVENTION (WIPO 1978), cited in PATRY, supra. The Berne Convention itself, the widely joined international copyright treaty, does not require fixation for protectibility. Art. 2(2).
29. Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1379 (1989), quoted in JOYCE, supra note 18, at 59.
30. See id. at 1380, where the author understands the fixation requirement as the alternative to ownership in "vague and hazy abstractions."
31. See e.g. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991).
32. "The primary objective of copyright is not to reward the labor of authors, but to 'promote the Progress of Science and useful Arts.' " Id. at 349 (citation omitted).
33. Even were copyright protection afforded to her, it is unlikely, if she is serious, that she would rely upon it, since she has no proof in stable record that the work is hers. See supra note 23 and accompanying text.
34. Consider, for example, the inclusion of pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures, and architectural works, within the subject matter of federal copyright protection. 17 U.S.C. § 102(a)(4), (5), (6), (8).
35. See, e.g., Goldstein v. California, 412 U.S. 546 (1973).
36. Id. at 561.
37. ABRAMS, supra note 21, at § 8.02[B].
38. See JOYCE, supra note 18, at 58-59.
39. Id. The House Report accompanying the Copyright Act of 1976 noted that "[u]nder the bill, the concept of fixation . . . represents the dividing line between common law and statutory protection." H.R. REP. NO. 1476, 94th Cong., 2d Sess. 52 (1976), The entire Report is reprinted in 1976 U.S.C.C.A.N. 5659.
40. See supra note 10 and accompanying text.
41. The drafters of the bill sought with this device to emphasize a "fundamental distinction between the 'original work' which is the product of 'authorship' and the multitude of material objects in which it can be embodied." H.R. REP. NO. 1476, at 53. "Thus," they wrote, "in the sense of the bill, a 'book' is not a work of authorship, but is a particular kind of 'copy.' " Id.
42. 17 U.S.C. § 101 (emphasis added).
43. See infra Section III, Part A.
44. INFORMATION INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS (Sept. 1995) [hereinafter WHITE PAPER].
45. INFORMATION INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: A PRELIMINARY DRAFT OF THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS (July 1994) [hereinafter GREEN PAPER].
46. WHITE PAPER, supra note 40, at 27. The phrase "may not be so clear" apparently represents an advance in knowledge over the state of affairs of four-teen months earlier, when the Green Paper wrote, "The sufficiency of fixation . . . is not so clear." GREEN PAPER, supra note 41, at 14 (emphasis added).
47. WHITE PAPER, supra note 41, at 28 (citations omitted; see infra notes 104-105 and accompanying text); GREEN PAPER, supra note 40, at 15. It is clear that the task force is here, under the heading "Eligibility for Protection," talking about fixation of the creation of the work, as opposed to fixation of reproduction. The question of whether RAM copies are sufficient for fixation in reproduction is discussed later in the report, WHITE PAPER, supra at 65; GREEN PAPER, supra at 37. See also infra note 106 and accompanying text.
48. In deciding on its recommendations, the Working Group noted that regarding some issues, entirely new legislative solutions are clearly needed. In addition to these, it averred, "[c]ertain issues merely require an explanation of the application of the current law" while "[o]thers present rights or limitations that clearly fit within the spirit of the law but the letter of the law is in need of clarification to avoid uncertainty and unnecessary litigation." WHITE PAPER, supra note 40, at 211-12.
49. 17 U.S.C. § 101.
50. H.R. REP. NO. 1476, at 54 (emphasis added). Note that the House Report language on evanescence generally is phrased in terms of the insufficiency of fixation of reproductions, not creations, a point not noticed by the commentators, and perhaps not by the drafters themselves.
51. David Loundy, E-Law: Legal Issues Affecting Computer Information Systems and System Operator Liability, 12 COMP./LAW J. 101, 138-39 (1993).
52. Id., n.226 (emphasis added). The same author was less hesitant in another article written the same year (and with the same title), at least as far as "browsing" was concerned: "[I]f someone connects to the computer information system and just peruses the archive, if the information is not 'downloaded,' 'screen captured,' or otherwise recorded on computer disk, tape, or printout, then no fixation is made and thus, no copy." David J. Loundy, E-Law: Legal Issues Affecting Computer Information Systems and Systems Operator Liability, 3 ALB. L.J. SCI. & TECH. 79, 127 (1993).
53. See infra note 74 and accompanying text.
54. 594 F. Supp. 617 (C.D. Cal. 1984).
55. Id. at 622.
56. 991 F.2d 511 (9th Cir. 1993). We will refer to this case as Peak, as do many writers presently, in order to distinguish it from a later case also involving MAI Systems. See infra note 58. The reader should note, however, that some of the literature refers to this case as MAI.
57. Peak, 991 F.2d at 519.
58. The court cited 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"); 2 NIMMER ON COPYRIGHT § 8.08 at 8-105 (1983) ("inputting a computer program entails the preparation of a copy.");
59. FINAL REPORT OF THE NATIONAL COMMISSION ON THE NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS 13 (1978) [hereinafter CONTU REPORT] ("the placement of a work into a computer is the preparation of a copy").
60. Peak, 991 F.2d at 519.
61. Id. at 518.
62. The anomaly was noted in Elkin-Koren, supra, note 2, at 354 n.44.
63. 845 F. Supp. 356 (E.D. Va. 1994).
64. Id. at 363.
65. Id. at 362-3.
66. Id. at 363.
67. Id.
68. Id.
69. See infra, note 107 and accompanying text.
70. A number of other objections have also been raised concerning aspects of these decisions that lie outside the scope of this inquiry. These include the question of why the service technicians were not permitted to turn on the computers under the license of the owners, and, alternatively, why they were not allowed the defense of fair use. See, e.g., Karen Levin, Note, MAI v. Peak: Should Loading Operating System Software into RAM Constitute Copyright Infringement?, 24 GOLDEN GATE U. L. REV. 649 (1994); Carol G. Stovsky, Note, MAI Systems Corp. v. Peak Computer, Inc.: Using Copyright Law to Protect Unauthorized Use of Computer Software, 56 OHIO ST. L.J. 593 (1995).
71. This brief history is reviewed in Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d. 1240 (3d. Cir. 1983) (cert. dismissed, 464 U.S. 1033 (1984)).
72. H.R. REP. NO. 1476, at 54.
73. CONTU REPORT, supra note 54, at 29-30.
74. Id. at 72-73.
75. See JOYCE, supra note 18, at 140-143.
76. CONTU REPORT, supra note 54, at 66-67.
77. Id. at 67.
78. Id. at 68.
79. 17 U.S.C. §§ 101, 117.
80. See Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) (cert. dismissed, 464 U.S. 1033 (1984).
81. 1994 WL 446049 (N.D.Cal.).
82. 1994 WL 446049 *4-5.
83. See also Elkin-Koren, supra note 2, at 353, where the Peak decision is interpreted as based on the reasoning that the copy "can be perceived for more than a transitory duration" (emphasis added).
84. See supra notes 58-61 and accompanying text.
85. The Triad decision exceeds the Apple Computer holding, supra note 75 and accompanying text, that object code is protectible because even a program in object code may meet Nimmer's test, supra notes 72-73 and accompanying text, of producing a work that itself qualifies for protection. The Triad court argues - unpersuasively - that Apple is grounds for erasing the distinction between software programs that produce a perceivable display and those that do not. It alludes to the Nimmer test and argues that the fact that the CONTU Report rejected it supports its own conclusion. 1994 WL 446049 *4-5.
86. As noted above, supra note 72 and accompanying text, no less an authority than Melville Nimmer suggested that such a reconsideration could be in order. The demarcation line that he proposed between different types of software would not necessarily be the direction in which lawmakers would go. See also JOYCE, supra note 18, at 143, noting the conclusion of a 1986 study by the Office of Technology Assessment, an advisory body to Congress, that "copyright may not, after all, be the most appropriate forum of legal protection for software programs."
87. See infra notes 104-106 and accompanying text.
88. See supra notes 46-51 and accompanying text.
89. Elkin-Koren, supra note 2, at 350.
90. Raymond T. Nimmer & Patricia A. Krauthaus, Copyright on the Information Superhighway: Requiem for a Middleweight, 6 STAN. L. & POL'Y REV. 25, 33 (1994). Note the authors' argument that in Peak, the copies could not be perceived by the user. Right or wrong on the facts of the case, were they anticipating Triad?
91. Raymond T. Nimmer & Patricia A. Krauthaus, Copyright on the Information Superhighway: Requiem for a Middleweight, 6 STAN. L. & POL'Y REV. 25 (1994) Id.
92. Michael E. Johnson, Note, The Uncertainties of Computer Software Users' Rights in the Aftermath of MAI Systems, 44 DUKE L.J. 327, 334 (1994).
93. Cf. JOYCE, supra note 18, at 57, for the opposite example of "a photograph, which requires chemical processing before the 'latent' image on the film negative becomes perceptible."
94. Cf. id. at 59 where an ice sculpture is offered as an example of an unfixed work. The frost hypothetical, as well as the Scrabble tiles example, suggested themselves to me from Jewish law, which discusses whether such instances of "inscription" would violate the prohibition of writing on the Sabbath. SHULCHAN ARUCH ORACH CHAYIM 340:4 and commentaries thereto.
95. The example of writing in sand where "the next wave will erase it forever," is suggested in 2 NIMMER ON COPYRIGHT, supra note 12, § 8.02[B].
96. Nimmer & Krauthaus, supra note 85, at 33.
97. Johnson, supra note 87, at 614.
98. Triad, 1994 WL 446049, *4-5 (emphasis added).
99. GREEN PAPER, supra note 41, at 36.
100. Id. at 37.
101. WHITE PAPER, supra note 40, at 64-65. The Final Report replaced the term "browses" with the word "accesses." Critics of the Task Force's position believe that viewing documents on line should be likened to "browsing" magazines in a newstand, with no copyright implications. Perhaps that is why the government changed the word to "accessing," to convey more of a sense of egregiousness.
102. Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L.J. 29, 32 (1994).
103. Post, supra note 9, at 104.
104. Litman, supra note 97, at 32. The author saw the government's task force as "tak[ing] the side of copyright owner interests in every dispute," and opined that the Green Paper "reads as if it were Santa Claus' response to the wish lists presented by current stakeholders." Id.
105. Id. at 32.
106. Pamela Samuelson, The NII Intellectual Property Report, 37 COMMUNICATIONS OF THE ACM 21, 22 (Dec. 1994).
107. On this suggestion, see supra note 9 and accompanying text.
108. Litman, supra note 97, at 41.
109. GREEN PAPER, supra note 41, at 15 n.32.
110. WHITE PAPER, supra note 40, at 28 n.67. The Green Paper was published, officially, in July 1994. The Triad decision is dated March 18, 1994.
111. Id. at 65 n.204 (emphasis added). It is unclear why under fixation for creation, the White Paper cites Advanced Computer Systems and Triad, whereas under reproductive copies it cites Peak.
112. See, e.g., Jane C. Ginsburg, Putting Cars on the "Information Syperhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466, 1476 n.39. See also infra note 117.
113. See O'Rourke, supra note 2, at 513 nn. 29, 43. From words like "presumably" and "this assumes," one notes a slight hesitation to accept the jump from the software cases to reproductive copies of documents and first embodiments of of works of authorship.
114. See Litman, supra note 97, at 42, who seems to imply that Peak and its progeny would be support for a view of browsing as infringement, but rejects the authority of this case law in favor of the inferences she sees in statutory language and a House Report speaking specifically about on-screen images.
115. Samuelson, supra note 101, at 23.
116. 17 U.S.C. § 101.
117. Samuelson seems to blur the issue elsewhere, too, where she speaks of the "sophisticated appeal of an argument that digital copies don't infringe because of their immaterial nature." Samuelson, supra note 101 at 22 (emphasis added). The issue of RAM copies is not their materiality or lack thereof. The RAM components are material; the question revolves around their transitory existence. See Advanced Computer Services, 845 F. Supp. 356, 363 ("electrical impulses of a program in RAM are material objects"; [b]eyond materiality is the question whether the program . . . is adequately fixed") (emphasis added).
118. See supra notes 88-90 and accompanying text.
119. However, we have already noted, supra notes 91-93 and accompanying text, that some commentators have viewed the "true concern" of Peak and the subsequent software cases as revolving around the utility of the software copies, not technical questions about the nature of their transitory existence. We will visit the question of applying such "utility" analysis to the browsing issue further in this study, infra Section II[E](1)(b).
120. This is aside, of course, from the policy arguments that the law for cyberspace should be changed.
121. See supra notes 104-106 and accompanying text.
122. See, e.g., Elkin-Koren, supra note 2; at 355; Ginsburg, supra note 107; Litman, supra note 109; Nimmer & Krauthaus, supra note 85; Post, supra note 9; Samuelson, supra note 101.
123. 839 F. Supp. 1552 (M.D. Fla. 1993).
124. See Elkin-Koren, supra note 2 at 352.
125. Id.
126. While the "mirror argument" may be weak, supra note 112, the "Scrabble" analysis still raises grounds for hesitancy, supra note 113, and the jump from software to browsing still leaves lingering doubts, see supra note 117 and subsequent text.
127. See infra Section IV, Part A.
128. Supra note 5.
129. O'Rourke, supra note 2, at 512.
130. Id. at 513 n.25. The commentator raises the interesting question of whether or not reception of the message directly into a permanent storage disk of the recipient, if authorized by the sender, would be sufficient for the fixation requirement even if it was composed and sent in RAM and even if we held that such composition was not fixation in of itself. The copyright statute provides that a performance that is broadcast live - such as a football game on television - though not deemed fixed by virtue of the performance itself may be rendered fixed if it is recorded by authority of the author simultaneously with the transmission. 17 U.S.C. § 101. She concludes, based on technical realities and case law, that the fixation in the above-described situation is "likely to occur virtually at the same time as the sender's transmission." O'Rourke, supra note 2, at 513 n.30.
131. O'Rourke, supra note 2, at 513 n.25.
132. See supra notes 104-105 and accompanying text.
133. See, e.g., NEIL BOORSTYN, 1 BOORSTYN ON COPYRIGHT, § 2.04 n.2 (1996) (drawing proof from computer software cases to fixation of original work). See also PATRY, supra note 24, at 171 n.208 (discussing Peak and progeny in the context of fixation of original works of authorship).
134. See O'Rourke, supra note 2, at 53 n.29, who makes the comparison with Peak but damns it with faint praise as only "presumably" valid, and wavers further when it comes to chat groups, as observed at infra note 130. See also Ilene K. Gotts & Alan D. Rutenberg, Navigating the Global Information Superhighway, 8 HARV. J.L. & TECH. 275, 299 (1995), where the authors seem to accept the computer software holding, n.106, yet declare the protectibility of e-mail messages in RAM to be uncertain because of the "rapidly changing" and "quite brief" aspect of such communications' existence.
135. O'Rourke, supra note 2, 513 n.29.
136. Id. (emphasis added).
137. See supra, note 78 and accompanying text.
138. Advanced Computer Services, 845 F. Supp. 356, 363.
139. See supra notes 91-93 and accompanying text.
140. See supra note 80 and accompanying text.
141. See supra note 97 and accompanying text.
142. See infra note 157 and accompanying text.
143. See supra notes 110-112 and accompanying text.
144. But see infra notes 145-146 and accompanying text.
145. Supra note 10 and accompanying text.
146. 209 U.S. 1 (1908).
147. White-Smith, 209 U.S. 1, 20 (Holmes, J., concurring).
148. See H.R. REP. NO. 1476, 52.
149. 17 U.S.C § 102.
150. JOYCE, supra note 18, at 50.
151. Id.
152. See supra note 23 and accompanying text.
153. See supra, introduction to Section III.
154. Ironically, however, O'Rourke's argument for fixation in the case of e-mail, stressing its editability, supra notes 130-131 and accompanying text, runs counter to this reasoning.
155. This point regarding the denotation of the constitutional clause is conceptually distinct from the similar point made above, supra Section II[E](1)(c), regarding technical formalities of the statutorily defined notion of fixation.
156. White-Smith, 209 U.S. 1, 19 (Holmes, J., concurring).
157. Id.
158. This argument, of course, applies only to objections to the IITF cloaked in the garb of technical critique. The second prong of opposition - pinned purely on policy considerations - speaks independently on its own merits and is outside the scope of this Note.
159. See supra Section II[C](3)(b).
160. For a provocative discussion of social dialogue in the Information Age, see Elkin-Koren, supra note 2 at 319-400.
161. The question naturally evokes a comparison to the debate over whether downloading documents on-line should be called "accessing" or merely "browsing" or "reading." See supra note 96 and accompanying text.
162. Supra notes 130-137 and accompanying text.