Fixing RAM copies

Northwestern University Law Review

Volumn 104, Issue 3, 2010, Pages 1067-1108

  Perzanowski, Aaron ^a  

^a WAYNE STATE UNIVERSITY   (United States)

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EID: 78751608943     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (290)

1. See LYMAN RAY PATTERSON, COPYRIGHT IN HISTORICAL PERSPECTIVE 46-48 (1968) (describing the control the Stationers' monopoly afforded over publication and disposition of copies in sixteenth and seventeenth century England). In 1710, the Statute of Anne extended to authors the "sole liberty of printing and reprinting" copies of their books and prohibited unauthorized sale and publication of the same. 1710, 8 Ann., c.19 (Eng.). In the United States, the Copyright Act of 1790 provided copyright holders "the sole right and liberty of printing, reprinting, publishing and vending" books, maps, and charts. Copyright Act of 1790, 1 Stat. 124 (1790).
2. 17 U.S.C. § 102 (2006) (enumerating the classes of works protected by copyright);
3. 17 U.S.C. (2006) § 106 (enumerating the exclusive rights granted to copyright holders).
4. See infra Part III.A for a discussion of the importance of the definition of "copies" in establishing infringement.
5. See John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 UTAH L. REV. 537, 543-48 (describing the increasing presence of copyright law in the daily activities of aver-age citizens).
6. The term "copy" is often used in a nontechnical sense to refer to any representation of a work. But the designation "copy" is a term of art defined by the Copyright Act. See 17 U.S.C. § 101 (2006) (defin-ing "copies"). The central question this Essay addresses is the extent to which data stored in RAM con-stitutes a copy in this strict sense. To avoid unnecessary confusion in terminology, this Essay uses the term "instantiation" to refer to a representation of a work when its status as a copy is open to debate, and the term "copy" to refer to representations that meet the statutory definition in the Copyright Act.
7. 991 F.2d 511, 518 (9th Cir. 1993).
8. 536 F.3d 121, 129-30 (2d Cir. 2008).
9. 536 F.3d 121, 129-30 (2d Cir. 2008).
10. 536 F.3d 121, 129-30 (2d Cir. 2008).
11. RAM differs from more permanent means of digital storage in several ways. RAM relies on elec-trical impulses to store data, in contrast to more stable magnetic or optical media. See Bradley J. Nicholson, The Ghost in the Machine: MAI Systems Corp. v. Peak Computer, Inc. and the Problem of Copying in RAM, 10 HIGH TECH. L.J. 147, 149 (1995). As a result, RAM is volatile. Data stored in RAM is lost when a computer is powered off.
12. Bradley J. Nicholson, The Ghost in the Machine: MAI Systems Corp. v. Peak Computer, Inc. and the Problem of Copying in RAM, 10 HIGH TECH. L.J. 147, 149 (1995). RAM also tends to be more expensive and less abun-dant than hard disk space or other media of long-term storage.
13. Bradley J. Nicholson, The Ghost in the Machine: MAI Systems Corp. v. Peak Computer, Inc. and the Problem of Copying in RAM, 10 HIGH TECH. L.J. 147, 149 (1995).
14. Modern RAM is dynamic, meaning that its data must be continually refreshed and overwritten in or-der to remain usable. SCOTT MUELLER, UPGRADING AND REPAIRING PCS 419 (2003) (describing dy-namic RAM as the main memory in a modern PC). Static RAM (SRAM) technology, which does not require constant refreshing of data, generally is not used as the primary memory in personal computers or other applications requiring large amounts of memory.
15. SCOTT MUELLER, UPGRADING AND REPAIRING PCS (2003) at 419-20.
16. See 17 U.S.C. § 106(1) (2006) (providing copyright holders the exclusive right, subject to various exceptions and limitations, to reproduce copies of their works).
17. See George D. Cary, Copyright Registration and Computer Programs, 11 BULL. COPYRIGHT SOC'Y 362, 363 (1964) (noting the first effort to deposit a computer tape for copyright registration in 1961). Despite statutory and constitutional doubts, the Copyright Office began accepting registration applications for computer programs under its "rule of doubt" in 1964.
18. See Pamela Samuelson, CONTU Revisited: The Case Against Copyright Protection for Computer Programs in Machine-Readable Form, 1984 DUKE L.J. 663, 692-94.
19. See 17 U.S.C § 117 (Supp. I 1977). Prior to its amendment in 1980, § 117 provided: Notwithstanding the provisions of sections 106 through 116 and 118, this title does not afford to the owner of copyright in a work any greater or lesser rights with respect to the use of the work in conjunction with automatic systems capable of storing, processing, retrieving, or transferring in-formation, or in conjunction with any similar device, machine, or process, than those afforded to works under the law, whether title 17 or the common law or statutes of a State, in effect on De-cember 31, 1977, as held applicable and construed by a court in an action brought under this title.
20. 17 U.S.C § 117 (Supp. I 1977). Prior to its amendment in 1980, § 117.
21. See National Commission on New Technological Uses of Copyrighted Works, Pub. L. No. 93-573, 88 Stat. 1873, 1873-74 (1974) (authorizing the creation of the Commission and empowering it to study and report on computer-related uses of copyrighted works as well as the use of photocopiers).
22. See NATIONAL COMMISSION ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS, FINAL REPORT (1979) [hereinafter CONTU].
23. Patent and Trademark Laws Amendment Act, Pub. L. No. 96-517, § 117, 94 Stat. 3015, 3028 (1980) (codified at 17 U.S.C. §§ 101, 117 (1982)) (adding a statutory definition of "computer program" to § 101 and substituting a new § 117, which permits owners of copies of computer programs to modify them and create archival copies).
24. See MAI Sys. Corp. v. Peak Computer, Inc., No. CV 92-1654-R, 1992 WL 159803 (C.D. Cal. Apr. 14, 1992), aff'd 991 F.2d 511 (9th Cir. 1993). Earlier courts noted the differences between RAM and other forms of memory without reaching the RAM copy question.
25. See Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1243 n.3 (3d Cir. 1983) (contrasting RAM with "permanent memory devices").
26. Peak, 1992 WL 159803, at *1-3.
27. Peak, 1992 WL 159803 at *7.
28. Peak, 1992 WL 159803 at *8.
29. A representative MAI software license provided that "customer[s] may give access to the initial software only to the following: (i) bona fide employees of customers who agree to be bound by these terms and conditions; (ii) representatives of MAI; and (iii) others authorized by MAI in writing." Peak, 1992 WL 159803 at *2 (internal quotation marks omitted).
30. Peak, 991 F.2d at 515.
31. Peak, 991 F.2d at 518.
32. 17 U.S.C. § 101 (2006).
33. 17 U.S.C. § 101 (2006).
34. Peak, 991 F.2d at 519.
35. See, e.g., London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 175 n.29 (D. Mass. 2008) (citing Peak, 991 F.2d at 518-19) (recognizing "that electronic copies can be of varying permanence, and it is not clear that all of them should be treated equally under the copyright statutes" (citation omit-ted))
36. Marobie-FL, Inc. v. Nat'l Ass'n of Fire Equip. Distribs. & Nw. Nexus, Inc., 983 F. Supp. 1167, 1177 (N.D. Ill. 1997) (stating that Peak "found that the ... program ... was 'fixed' in RAM because the computer user was able to view a representation of the program's information")
37. Advanced Computer Servs. v. MAI Sys. Corp., 845 F. Supp. 356, 363 (E.D. Va. 1994) (suggesting that RAM instantiations persisting for "seconds or fractions of a second ... arguably would be too ephemeral to be considered 'fixed' or a 'copy'" while those persisting for "minutes or longer" are copies)
38. see also Cartoon Network v. CSC Holdings, 536 F.3d 121, 128 (2d Cir. 2008) (interpreting Peak to be premised on the assumption that RAM instantiations persisted for several minutes).
39. First, the court stated that the RAM instantiations were copies because Peak could "view the sys-tem error log and diagnose the problem with the computer." Peak, 991 F.2d at 518. In another formula-tion, the court explained that because those instantiations could be "perceived, reproduced, or otherwise communicated, ... the loading of software into the RAM creates a copy under the Copyright Act."
40. Peak, 991 F.2d at 519 (internal quotation marks omitted).
41. Peak, 991 F.2d. at 518.
42. Peak, 991 F.2d. at 518.
43. The Ninth Circuit has implicitly called into question its reasoning in Peak on at least one occa-sion. The Copyright Act does not require that derivative works be fixed in order to infringe. But deriva-tives must meet a related, if less exacting, standard: they "must incorporate a protected work in some concrete or permanent 'form.'" Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965, 967 (9th Cir. 1992) (holding that a device that altered the gameplay of video games did not give rise to de-rivative works).
44. Subsequently, the Ninth Circuit distinguished alterations it deemed sufficiently perma-nent to constitute derivative works from the impermanent displays at issue in Galoob on the grounds that those displays "were not incorporated in any permanent form; when the game was over, they were gone." Micro Star v. FormGen Inc., 154 F.3d 1107, 1111 (9th Cir. 1998). The court's willingness to rely on the temporary and volatile nature of an instantiation to resolve the derivative work question is difficult to reconcile with Peak's blindness to the similar considerations.
45. Stenograph L.L.C. v. Bossard Assocs., 144 F.3d 96, 102 (D.C. Cir. 1998) (interpreting Peak as holding that "RAM reproduction constitutes a copy")
46. FM Indus., Inc. v. Citicorp Credit Servs., Inc., No. 07 C 1794, 2008 U.S. Dist. LEXIS 20670, at *14 (N.D. Ill. Mar. 17, 2008) (citing Peak for the proposition that "a user reproduces a program ... merely by launching that program, thereby causing the computer to copy it to [RAM]")
47. Iconix, Inc. v. Tokuda, 457 F. Supp. 2d 969, 995 (N.D. Cal. 2006) (in-terpreting Peak as holding that "running copyrighted software, without ownership of the copyright or a license to run the software, constitutes copyright infringement")
48. CSU Holdings, Inc. v. Xerox, 910 F. Supp. 1537, 1541 (D. Kan. 1995) (relying on Peak for the notion that transferring a program from sto-rage to RAM creates a copy)
49. Tricom, Inc. v. Elec. Data Sys. Corp., 902 F. Supp. 741, 745 (E.D. Mich. 1995) (citing Peak for the proposition that copying occurs any time a computer program is transferred from storage to RAM).
50. Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330, 1333-34 (9th Cir. 1995) (reiterating Peak's holding "that the loading of MAI's operating system software into RAM makes a 'copy' under the Cop-yright Act").
51. See Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1294 (D. Utah 1999) (holding that browsing an infringing website created RAM copies sufficient to support a claim of contributory infringement for one who provides links to that site)
52. Playboy Enters., Inc. v. Webbworld Inc., 991 F. Supp. 543, 551 (N.D. Tex. 1997) (citing Peak as "holding that copying occurs when a computer program is transferred from a permanent storage device to a computer's random access memory")
53. Sega Enters. v. MAPHIA, 948 F. Supp. 923, 931 (N.D. Cal. 1996) (citing Peak to support its conclusion that copying occurs when a program is transferred from storage to RAM)
54. Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F. Supp. 1361, 1368 (N.D. Cal. 1995) (suggesting that under Peak "the loading of data from a storage device into RAM constitutes copying because that data stays in RAM long enough for it to be perceived").
55. See Tiffany Design, Inc. v. Reno-Tahoe Specialty, Inc., 55 F. Supp. 2d 1113, 1120-21 (D. Nev. 1999) (relying on Peak in holding that the scanning of a copyrighted image into RAM constituted a re-production).
56. See MDY Indus., LLC v. Blizzard Entm't, Inc., No. CV-06-2555-PHX-DGC, 2008 U.S. Dist. LEXIS 53988, at *19-21 (D. Ariz. July 14, 2008) (granting summary judgment on contributory copy-right infringement claim against developer of interoperable software premised on creation of unautho-rized RAM copies by end users)
57. Ticketmaster L.L.C. v. RMG Techs., Inc., 507 F. Supp. 2d 1096, 1116-17 (C.D. Cal. 2007) (holding that the plaintiff had demonstrated it would likely succeed on claims for direct and contributory copyright infringement against developer of automated ticket purchasing software for creating unauthorized RAM copies of ticket vendor's website).
58. Stenograph, 144 F.3d at 102.
59. As one court opined, "in making a copy, even a temporary one, the person who [did so] in-fringe[d] the copyright." Intellectual Reserve, 75 F. Supp. 2d at 1294
60. see also Triad Sys. Corp. v. Se. Express Co., 31 U.S.P.Q.2d 1239, 1240 (N.D. Cal. 1994) (citing Peak "for the more general proposition that 'a copy made in RAM is "fixed" and qualifies as a copy under the Copyright Act'").
61. Tiffany Design, 55 F. Supp. 2d at 1121 (emphasis added).
62. See BRUCE A. LEHMAN, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE 65 (1995) (describing Peak's holding "that booting a PC involves copying" as "unex-ceptional").
63. But see James Boyle, Intellectual Property Policy Online: A Young Person's Guide, 10 HARV. J.L. & TECH. 47, 68-69 (1996) (disputing Lehman's characterization).
64. 17 U.S.C. § 101 (2006).
65. NATIONAL COMMISSION ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS, FINAL REPORT (1979) [hereinafter CONTU], at 40.
66. MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993) ("recogniz[ing] that these authorities are somewhat troubling" because they do not distinguish between RAM, hard disks, or ROM).
67. James Boyle, Intellectual Property Policy Online: A Young Person's Guide, 10 HARV. J.L. & TECH. 47, 68-69 (1996), at 93-94
68. Niva 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, 354 n.47 (1995).
69. See Joseph P. Liu, Owning Digital Copies: Copyright Law and the Incidents of Copy Ownership, 42 WM. & MARY L. REV. 1245, 1259-60 (2001).
70. H.R. REP. NO. 94-1476, at 53 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5666 (emphasis added). This conclusion is consistent with the prior opinion expressed by the Register of Copyrights a decade earlier. Copyright Law Revision: Hearings Before Subcomm. No. 3 of the Comm. on the Judi-ciary on H.R. 4347, H.R. 5680, H.R. 6831, H.R. 6835, Part 3, 89th Cong. 1861 (1966) (statement of Bel-la Linden) (stating "I do not believe that the transitory image of a copyrighted work, taken from an authorized reproduction stored in a computer and consulted at the computer site, should be treated as different from the consultation of a book in a library").
71. Two post-Peak legislative changes could suggest that Congress embraced its RAM copy doctrine. The Digital Millennium Copyright Act (DMCA) revised the existing § 117 exception, sanctioning com-puter maintenance and repair to the extent those activities result in the creation of copies of programs. 17 U.S.C. § 117(c) (2006).
72. This provision, while rebuking Peak, assumes that courts could consider instantiations in RAM to be copies. Likewise, the DMCA added a new § 512 creating a number of safe harbors for providers who transmit, store, and locate information over digital networks. Congress enacted the transmission safe harbor in § 512(a) because "in the course of moving packets of informa-tion across digital online networks, many intermediate and transient copies of the information may be made in routers and servers along the way." S. REP. NO. 105-190, at 41 (1998). Again, unless these in-stantiations could be treated as copies, this limitation on liability would be unnecessary.
73. Congress's sensitivity to potential liability could suggest an underlying endorsement of Peak. See Jane C. Ginsburg, Copyright Legislation for the "Digital Millennium", 23 COLUM. J.L. & ARTS 137, 141 n.14 (1999) (suggesting that § 117(c) confirms Peak's RAM holding).
74. Such an argument overstates Congress's response. Congress enacted two narrow limitations intended to target specific consequences of the RAM copy doctrine. But Congress never signaled agreement with that doctrine, only recognition of its common law development. The legislative history carefully avoids any endorsement of Peak. See S. REP. NO. 105-190, at 56-57 (referring to § 117(c) as "a minor, yet important clarifica-tion ... necessary in light of judicial decisions")
75. S. REP. NO. 105-190, at 19 (noting that "Section 512 is not intended to imply that a service provider is or is not liable as an infringer either for conduct that qualifies for a limi-tation of liability or for conduct that fails to so qualify")
76. see also Jonathan Band & Jeny Marcinko, A New Perspective on Temporary Copies: The Fourth Circuit's Opinion in Costar v. Loopnet, 2005 STAN. TECH. L. REV. P1, ¶ 18 (noting that Congress declined to "endorse[] the decisions that determined a RAM copy was a copy for copyright purposes" but "simply acknowledged that the courts had so found").
77. Peak, 991 F.2d at 519.
78. 847 F.2d 255, 261 (5th Cir. 1988)
79. Bradley J. Nicholson, The Ghost in the Machine: MAI Systems Corp. v. Peak Computer, Inc. and the Problem of Copying in RAM, 10 HIGH TECH. L.J. (1995), at 149 (discussing the vola-tile nature of information stored in RAM).
80. Niva 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., n.47 (1995)., at 354.
81. Peak, 991 F.2d at 518 (citing Apple Computer, Inc. v. Formula Int'l, Inc., 594 F. Supp. 617, 621 (C.D. Cal. 1984)).
82. ROM, or read only memory, is a nonvolatile form of memory that stores data permanently or semi-permanently even if power is lost. SCOTT MUELLER, UPGRADING AND REPAIRING PCS (2003), at 424.
83. Apple Computer, Inc., 594 F. Supp. at 622.
84. Peak, 991 F.2d at 518-19 (citing Apple Computer, Inc., 594 F. Supp. at 621).
85. See also Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1243 n.3 (3d Cir. 1983) (explaining that "RAM ... is a chip on which volatile internal memory is stored which is erased when the computer's power is turned off" in contrast to "permanent memory devices").
86. The court also relied on a leading treatise authored by a commissioner of CONTU. See Peak, 991 F.2d at 519 (citing MELVILLE B. NIMMER, 2 NIMMER ON COPYRIGHT § 8.08 at 8-105 (1983)). However, the proposition for which the court relied on Nimmer-that "inputting a computer program entails the preparation of a copy"-does not refer on its face to RAM instantiations and, like the CONTU report and Vault, may embrace only more permanent forms of memory.
87. MELVILLE B. NIMMER, 2 NIMMER ON COPYRIGHT § 8.08 at 8-105 (1983)
88. See Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L.J. 29, 31-32 (1994). Of course, even if a RAM copy establishes a prima facie violation of a copyright holder's ex-clusive rights, infringement is not a foregone conclusion. Defenses including fair use and implied li-cense would, in some cases, protect readers from liability.
89. See Mark Lemley, Dealing with Overlapping Copyrights on the Internet, 22 U. DAYTON L. REV. 547, 567 (1997) (suggesting that implied license provides a defense, but it does so "precisely ... where ... least needed")
90. Jule L. Sigall, Comment, Copyright Infringement Was Never This Easy: RAM Copies and Their Impact on the Scope of Copyright Protection for Computer Programs, 45 CATH. U. L. REV. 181, 217-19 (1995) (arguing that RAM copies
91. should be considered fair uses). The degree of insulation these defenses offer in practice remains far from certain.
92. See 17 U.S.C. § 106 (2006) (listing the exclusive rights of copyright holders).
93. See R. Anthony Reese, The Public Display Right: The Copyright Act's Neglected Solution to the Controversy Over RAM "Copies", 2001 U. ILL. L. REV. 83, 141.
94. See 2001 U. ILL. L. REV. 83. at 143-45.
95. See 17 U.S.C. § 106.
96. Mark Lemley, Dealing with Overlapping Copyrights on the Internet, 22 U. DAYTON L. REV. (1997), at 568.
97. Similarly, overlapping rights create unanticipated difficulties in litigation. Because copyright in-terests are divisible, the display and reproduction rights in a particular work, for example, might be con-trolled by two different parties. An accused infringer who digitally displays a work, creating an incidental RAM instantiation in the process, could face two separate lawsuits filed by the respective rights holders for a single act of infringement.
98. 17 U.S.C. § 109
99. Mark Lemley, Dealing with Overlapping Copyrights on the Internet, 22 U. DAYTON L. REV. (1997), at 575-76.
100. Joseph P. Liu, Owning Digital Copies: Copyright Law and the Incidents of Copy Ownership, 42 WM. & MARY L. REV. (2001). 1249-50.
101. See Press Release, NDS Group Ltd., 7 Out of 10 People Who Own a DVR Say They Can't Live Without It According to NDS Survey, http://nds.com/press_releases/NDS_DVR_Survey_030908.html (last visited Aug. 9, 2010) (noting that DVR owners ranked the device as the third most indispensable item after the washing machine and microwave oven).
102. In many respects the DVR represents a linear technological progression from an earlier innova-tion in home recording, the videocassette recorder, or VCR. In Sony Corp. of America v. Universal City Studios, Inc., the Supreme Court held that the manufacturer of early video recorder technology could not be held contributorily liable for infringement committed by the users of that technology because it was capable of substantial noninfringing use. 464 U.S. 417, 456 (1984). Despite the Sony safe harbor, early DVR developers faced similar allegations of indirect infringement.
103. See Complaint, Paramount Pictures Corp. v. ReplayTV, Civ. No. 01-09358 (C.D. Cal. Oct. 31, 2001), 2001 WL 35823747, available at http://w2.eff.org/IP/Video/Paramount_v_ReplayTV/20011031_complaint.html. The legal costs asso-ciated with this suit contributed to the eventual bankruptcy of SonicBlue, the company behind the pio-neering DVR ReplayTV.
104. See Mary Hodder, SonicBlue Declares Bankruptcy: Another Point for the Incumbents, BIPLOG (Mar. 21, 2003, 4:54 PM), http://journalism.berkeley.edu/projects/biplog/archive/000751.html.
105. Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp., 478 F. Supp. 2d 607, 611 (S.D.N.Y. 2007), aff'd sub nom. Cartoon Network v. CSC Holdings, 536 F.3d 121 (2d Cir. 2008).
106. Cartoon Network v. CSC Holdings, 536 F.3d 121 (2d Cir. 2008) at 612.
107. Cartoon Network v. CSC Holdings, 536 F.3d 121 (2d Cir. 2008) at 612.
108. Cartoon Network v. CSC Holdings, 536 F.3d 121 (2d Cir. 2008) at 615.
109. However, the efficiencies of the RS-DVR were limited to some extent by legal worries. Rather than storing a single copy of recorded programs that could be transmitted to each user, Cablevision chose to store a separate copy of each program for each subscriber who chose to record it. Cartoon Network v. CSC Holdings, 536 F.3d 121 (2d Cir. 2008) Presuma-bly this more resource intensive design decision was made to minimize potential liability for publicly performing the programs in question. For further discussion of the relationship between copyright law and technological efficiency
110. Ed Felten, Cablevision and Anti-Efficiency Policy, FREEDOM TO TINKER (Apr. 18, 2007, 5:24 AM), http://www.freedom-to-tinker.com/blog/felten/cablevision-and-anti-efficiency-policy.
111. Twentieth Century Fox, 478 F. Supp. 2d at 609-10.
112. Claims for contributory and vicarious liability were conspicuously absent from the complaint. As a strategic matter, the plaintiffs agreed to forego any claims premised on indirect infringement in ex-change for Cablevision's agreement not to raise a fair use defense to the direct infringement claims. Twentieth Century Fox, 478 F. Supp. 2d at 616.
113. The plaintiffs also alleged that their rights were infringed by the creation of copies of program-ming on Cablevision's centrally located hard disk and the display of recorded programs to Cablevision subscribers. The district court agreed that these acts constituted infringement despite Cablevision's ar-gument that its customers initiate both recording and playback. Twentieth Century Fox, 478 F. Supp. 2d at 624.
114. The BMR also altered the bitrate of the incoming data stream and assigned port numbers to each individual data stream to identify the channel it contained. Twentieth Century Fox, 478 F. Supp. 2d at 613.
115. Twentieth Century Fox, 478 F. Supp. 2d at 614.
116. Cartoon Network v. CSC Holdings, 536 F.3d 121, at 124-25 (2d Cir. 2008).
117. Twentieth Century Fox, 478 F. Supp. 2d at 614.
118. Twentieth Century Fox, 478 F. Supp. 2d at 614.
119. Twentieth Century Fox, 478 F. Supp. 2d at 614.
120. Twentieth Century Fox, 478 F. Supp. 2d at 615.
121. Twentieth Century Fox, 478 F. Supp. 2d at 615-16.
122. The district court, in keeping with the bulk of the case law, adopted the hard variant of Peak's RAM copy doctrine. Twentieth Century Fox, 478 F. Supp. 2d at 621 (noting that "numerous courts have held that the transmission of infor-mation through a computer's random access memory ... creates a 'copy'").
123. The Copyright Office's Section 104 Report, while offering a considerably more detailed analysis, largely reiterates the central holding of Peak. According to the Copyright Office, if an instantiation of a work persists long enough to be copied, perceived, or communicated, it is fixed. COPYRIGHT OFFICE, DMCA SECTION 104 REPORT 110-12 (2001) [hereinafter 104 REPORT]. This reading, however, col-lapses the two requirements of fixation imposed by the Copyright Act, essentially eliminating any inde-pendent role for the statute's "transitory duration" language.
124. COPYRIGHT OFFICE, DMCA SECTION 104 REPORT 110-12 (2001)
125. The 104 Report suggests that a transitory duration is necessarily less than an ephemeral one since the Copyright Act provides an exemption to liability for the creation of ephemeral copies by certain broad-casting organizations. See 17 U.S.C. § 112 (2006); 104 REPORT at 111.
126. The Copyright Office's asser-tion is correct as far as it goes. But the term "ephemeral," as defined by the Copyright Act, bears little connection to its common English usage. Such ephemeral copies created under § 112 can persist for as long as six months, 17 U.S.C. § 112(a)(1)(C), one year
127. 17 U.S.C. § 112(c)(3), or seven years
128. 17 U.S.C. § 112(b)(2). Section 112 simply offers no valuable insight into the proper understanding of transitory duration.
129. Twentieth Century Fox, 478 F. Supp. 2d at 621-22.
130. Cartoon Network v. CSC Holdings, 536 F.3d 121, 127 (2d Cir. 2008).
131. Cartoon Network v. CSC Holdings, 536 F.3d 121, 127 (2d Cir. 2008). (citing 17 U.S.C. § 101).
132. Cartoon Network v. CSC Holdings, 536 F.3d 121, 127 (2d Cir. 2008). (citing 17 U.S.C. § 101).
133. The Second Circuit also openly criticized the Section 104 Report for reading the durational re-quirement out of the statute. Cartoon Network v. CSC Holdings, 536 F.3d 121, 127 (2d Cir. 2008). (citing 17 U.S.C. § 101). at 129.
134. The court deemed the report's conclusion that an instantiation in RAM is a copy unless it "manifests itself so fleetingly that it cannot be copied, perceived or commu-nicated" unpersuasive.
135. Cartoon Network v. CSC Holdings, 536 F.3d 121, 127 (2d Cir. 2008). (citing 17 U.S.C. § 101). at 129. (internal quotation marks omitted).
136. Cartoon Network v. CSC Holdings, 536 F.3d 121, 127 (2d Cir. 2008). (citing 17 U.S.C. § 101) at 128.
137. Cartoon Network v. CSC Holdings, 536 F.3d 121, 127 (2d Cir. 2008). (citing 17 U.S.C. § 101) at 128.
138. Although the Supreme Court ultimately declined to grant the copyright holders' petition for certi-orari, it invited the Solicitor General to weigh in on the RAM instantiation controversy. See CNN, Inc. v. CSC Holdings, 129 S. Ct. 985, 985-86 (U.S. 2009).
139. The Solicitor General, much like the Second Circuit, attempted to minimize the gulf between the Peak line of cases and Cartoon Network. According to the Solicitor General, the Second Circuit merely "distinguished, rather than disagreed with" Peak. Brief for the United States as Amicus Curiae at 9, CNN, Inc. v. CSC Holdings, 129 S. Ct. 985 (U.S. 2009) [hereinafter CSC Brief].
140. Under this reading, Peak simply neglected to address the transitory dura-tion requirement rather than affirmatively reading it out of the statute. CNN, Inc. v. CSC Holdings, 129 S. Ct. 985 (U.S. 2009) Again, this charitable reading of Peak is inconsistent with the sweeping statements of its holding in both subsequent cases and Peak itself.
141. Another rationale offered by the Solicitor General for not granting certiorari is more persuasive. Be-cause the parties agreed to take questions of indirect liability and fair use off of the table, Cartoon Net-work offered the Court an inopportune record to fully address the issues raised by the RS-DVR technology. See CNN, Inc. v. CSC Holdings, 129 S. Ct. 985 (U.S. 2009). at 11-14. But this argument is unrelated to the claim that Cartoon Network and Peak are reconcilable.
142. CSC argued that copies resulting from subscriber commands to record and play back content were made, if at all, by the subscriber rather than Cablevision. This argument extended to the secondary ingest and streaming buffers, prompting the court to focus its analysis on the buffers CSC admittedly
143. created. With respect to the secondary ingest buffer, the court held that any copies created in response to requests to record a program were created by subscribers. Cartoon Network, 536 F.3d at 132.
144. The performance of recorded programs, presumably encompassing the streaming buffer, were according to the court private rather than public, and thus beyond the scope of the copyrights holders' exclusive rights. 536 F.3d at 138.
145. 536 F.3d at 124-25.
146. 536 F.3d at 130.
147. At least one court has relied on Cartoon Network's "suggest[ion] that the duration requirement would be satisfied where the program remained in the RAM for at least several minutes" to support a finding of infringement. SimplexGrinnell LP v. Integrated Sys. & Power, Inc., 642 F. Supp. 2d 167, 189 (S.D.N.Y. 2009) (internal citations omitted) (finding a copy was created when software was loaded into RAM for "several minutes to several hours").
148. See Eric Goldman, "DVR as a Service" Isn't Copyright Infringement-Cartoon Network v. CSC Holdings, TECHNOLOGY & MARKETING LAW BLOG (Aug. 4, 2008), http://blog.ericgoldman.org/archives/2008/08/dvr_as_a_servic.htm (noting that Cartoon Network "deftly side-steps" the difficulty of identifying any particular durational threshold).
149. Cartoon Network, 536 F.3d at 130.
150. CSC maintained that buffer data existed only while in transit between system components, and were thus literally transitory. Brief and Special Appendix for Defendants-Counterclaimants-Appellants at 40, Cartoon Network v. CSC Holdings, 536 F.3d 121 (2d Cir. May 30, 2007) (Nos. 07-1480-cv(L), 07-1511-cv(CON)), 2007 WL 6101602. Plaintiffs, on the other hand, urged the court to consider the functional role of buffer copies in enabling permanent downstream copies.
151. Because buffer instantiations were capable of being reproduced in fixed hard disk copies, they argued buffer data should be treated as fixed. See Brief of Plaintiffs-Counterclaim-Defendants-Appellees the Cartoon Network at 49-50, Car-toon Network v. CSC Holdings, 536 F.3d 121 (2d Cir. June 20, 2007) (Nos. 07-1480-cv(L), 07-1511-cv(CON)), 2007 WL 6101601. As a matter of statutory interpretation, the notion that the phrase "for more than a transitory duration" modifies potential downstream copies rather than the instantiation in question is implausible.
152. See Cartoon Network, 536 F.3d at 130 (noting that cases turn on the specific conduct at issue).
153. As a result, the few courts that have decided RAM copying questions in the wake of Cartoon Network have failed to embrace its fundamental lesson. In SimplexGrinnell LP v. Integrated Sys. & Power, Inc., the court bypassed any genuine analysis of the RAM copy question by limiting Cartoon Network to exceptionally brief instantiations and concluding that those lasting for "several minutes to several hours" were necessarily fixed. 642 F. Supp. 2d at 189.
154. In another recent case, the Fourth Circuit upheld a jury verdict against a defendant for creating RAM copies when its employees powered on computers containing the plaintiff's software, the license for which had expired. Quantum Sys. Integrators, Inc. v. Sprint Nextel Corp, Nos. 08-1534-45, 2009 U.S. App. LEXIS 14766, at *18-19 (4th Cir. July 7, 2009).
155. The court cited Cartoon Network in passing, but relied on Peak for the proposition that RAM instantiations are fixed copies.Inc. v. Sprint Nextel Corp, Nos. 08-1534-45, 2009 U.S. App. LEXIS 14766, at *18-19 (4th Cir. July 7, 2009).
156. 536 F.3d at 124-25. text accompanying note 95.
157. Cartoon Network, 536 F.3d at 130.
158. See Matthew Bender & Co. v. West Publ'g Co., 158 F.3d 693, 702 (2d Cir. 1998) (noting that "the sole purpose of § 101's definitions of the words 'copies' and 'fixed' is ... to define the material objects in which copyrightable and infringing works may be embedded and to describe the requisite fixed nature of that work within the material object").
159. The terms also figure in analysis of infringement of the distribution right. 17 U.S.C. § 106(3) (2006)
160. see infra Part III.B.
161. 17 U.S.C. § 101.
162. Similarly, the Act defines "phonorecords" as "material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any me-thod now known or later developed, and from which the sounds can be perceived, reproduced, or other-wise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 106(3) (2006).
163. 17 U.S.C. § 106(3) (2006).
164. The Copyright Act enumerates categories of works of authorship eligible for protection, among them literary, dramatic, and musical works, motion pictures, and sound recordings. See 17 U.S.C. § 102.
165. See, e.g., Copyright Act of 1909, ch. 320, 35 Stat. 1075 (1909) (current versions at 17 U.S.C. §§ 101-02).
166. The Register of Copyrights is the "director of the Copyright Office of the Library of Congress" and is charged with "advis[ing] Congress on national and international issues relating to copyright." 17 U.S.C. § 701.
167. STAFF OF H. COMM. ON THE JUDICIARY, 89TH CONG., SUPPLEMENTARY REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW: 1965 REVISION BILL 4 (Comm. Print 1965).
168. H.R. REP. NO. 94-1476, at 53 (1976)
169. S. REP. NO. 94-473, at 52 (1975). Congress used these same terms a decade earlier to describe the identical definition of copies introduced in 1965.
170. See H.R. REP. NO. 89-2237, at 45 (1966).
171. See H.R. REP. NO. 89-2237, at 45.
172. 17 U.S.C. § 102(a).
173. U.S. CONST. art. I, § 8, cl. 8.
174. See Goldstein v. California, 412 U.S. 546, 561 (1973) ("[T]he word 'writings' ... may be inter-preted to include any physical rendering of the fruits of creative intellectual or aesthetic labor.")
175. Bur-row-Giles Lithographic, Co. v. Sarony, 111 U.S. 53, 58 (1883) (embracing an understanding of "Writ-"Writings" that includes "all forms of writing, printing, engraving, etching, &c., by which the ideas in the mind of the author are given visible expression")
176. see also Aaron K. Perzanowski, The Penumbral Public Domain: Constitutional Limits on Quasi-Copyright Legislation, 10 U. PA. J. CONST. L. 1081, 1119-20 (2008) (quoting same and indicating that writings only include works "reduced to some tangi-ble physical representation").
177. 3 WILLIAM F. PATRY, PATRY ON COPYRIGHT § 9:63 (2007).
178. 3 WILLIAM F. PATRY, Patry also notes that Congress sought "to exclude from protection evanescent images cap-tured momentarily in the memory of a computer." § 9:63 (2007).
179. 17 U.S.C. § 101.
180. 17 U.S.C. § 101.
181. H.R. REP. NO. 94-1476, at 52 (1976) (noting that the definition of "fixation" was intended to re-solve "the status of live broadcasts-sports, news coverage, live performances of music, etc.-that are reaching the public in unfixed form but that are simultaneously being recorded"). The inclusion of this definition also prompted Congress to explain that "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" were beyond the scope of fixation.
182. H.R. REP. NO. 94-1476, (1976) at 53.
183. The simultaneous transmission exception raises questions about the extent to which instantiations like those at issue in Cartoon Network satisfy the embodiment requirement of fixation. The necessity of the exception suggests that the partial fixation of a work is normally insufficient to render the entire work fixed. Like the fixation of a live transmission, the instantiations created in the buffers of the RS-DVR system are only partial. But unlike the fixation of a live transmission, the buffer never contains the entire work, only a series of partial instantiations. In this sense, the partial serial instantiations in the RS-DVR buffer are even less fixed than the live transmissions Congress altered the Copyright Act to embrace.
184. 3 WILLIAM F. PATRY, PATRY ON COPYRIGHT (2007), § 9.63
185. 1 WILLIAM F. PATRY, PATRY ON COPYRIGHT § 3.24 (2007).
186. See 3 WILLIAM F. PATRY, PATRY ON COPYRIGHT (2007)., § 9.63.50 (agreeing with the outcome in Cartoon Network but suggesting "a much simpler way to get to that result" that rejects the equation of "copy" in the infringe-ment analysis with that term's statutory definition).
187. 1 WILLIAM F. PATRY, PATRY ON COPYRIGHT (2007)., § 3.24.
188. 3 WILLIAM F. PATRY, PATRY ON COPYRIGHT (2007)., §§ 9.63, 9.63.5.
189. 3 WILLIAM F. PATRY, PATRY ON COPYRIGHT (2007)., §§ 9.63, 9.63.5.
190. 3 WILLIAM F. PATRY, PATRY ON COPYRIGHT (2007)., § 9:63 ("Reproduction is not defined.")
191. 1 WILLIAM F. PATRY, PATRY ON COPYRIGHT (2007)., § 3.24 ("In the 1976 Act Congress declined to include a definition of infringement.").
192. See Mazer v. Stein, 347 U.S. 201, 218 (1954) ("[A] copyrighted directory is not infringed by a similar directory which is the product of independent work ... . Absent copying there can be no in-fringement of copyright." (footnotes omitted)).
193. See Boisson v. Banian, Ltd., 273 F.3d 262, 268 (2d Cir. 2001) ("[N]ot all copying results in cop-yright infringement, even if the plaintiff has a valid copyright. Plaintiffs must also demonstrate 'sub-stantial similarity.'" (citations omitted))
194. see also 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.01[B] (2009) ("[C]opying is ordinarily established indirectly by the plaintiff's proof of access and substantial similarity." (internal citations and quotations omitted)).
195. 17 U.S.C. § 106(1) (2006).
196. 3 WILLIAM F. PATRY, PATRY ON COPYRIGHT (2007)., § 9.63
197. 1 WILLIAM F. PATRY, PATRY ON COPYRIGHT (2007)., § 3.24.
198. Prior to 1976, copyright law did not draw an explicit distinction between the second and third notions of "copies" for infringement purposes. As one commentator describing the state of affairs under the 1909 Act explained: It would seem that a copy involves the conception that it must have some degree of permanency or the maxim de minimis would apply. Thus, while the making of a single copy may be infringe-ment, if this copy were destroyed almost as soon as made, as, for example, if a vaudeville artist drew with colored chalks, or if a verse were cast upon a screen through a stereopticon, it may be doubted whether such a temporary production could fairly be called a copy.
199. ARTHUR W. WEIL, AMERICAN COPYRIGHT LAW 406 (1917).
200. See 17 U.S.C. § 101 ("A work is 'fixed' in a tangible medium of expression when its embodi-ment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or sta-ble to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." (emphasis added)).
201. See, e.g., CoStar Group, Inc. v. Loopnet, Inc. 373 F.3d 544, 551 (4th Cir. 2004) (describing the transitory duration inquiry as involving both quantitative and qualitative considerations).
202. A number of early video game cases rejected arguments by defendants that the games at issue were not sufficiently fixed because their audiovisual displays were generated each time the games were played. These courts determined that the games were fixed, although not in a form immediately percept-ible without the operation of a machine. These cases did not reach the question of whether the screen displays themselves were of sufficient duration to be independently copyrightable. See, e.g., Williams Elecs., Inc. v. Artic Int'l, Inc., 685 F.2d 870 (3d Cir. 1982)
203. Stern Elecs., Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982)
204. Midway Mfg. Co. v. Artic Int'l, Inc., 547 F. Supp. 999 (N.D. Ill. 1982), aff'd 704 F.2d 1009 (7th Cir. 1983).
205. The very need for the simultaneous fixation exception provides some insight into the proper un-derstanding of "fixed." A live television broadcast is capable of being perceived or reproduced regard-less of whether it is simultaneously fixed by the copyright holder. If the ability to perceive, reproduce, or otherwise communicate a work were enough to satisfy the fixation requirement, there would be no need for the simultaneous fixation provision. That exception to the general rule for fixation therefore further undermines Peak's hard RAM copy doctrine. But because the images and sounds of a live broadcast persist only instantaneously, this exception does not help locate the outer bounds of "transito-ry duration."
206. See Douglas Lichtman, Copyright as a Rule of Evidence, 52 DUKE L.J. 683, 730-34 (2003) (dis-cussing evidentiary functions of fixation).
207. Gregory S. Donat, Note, Fixing Fixation: A Copyright with Teeth for Improvisational Perfor-mers, 97 COLUM. L. REV. 1363, 1400 (1997)
208. Douglas Lichtman, Copyright as a Rule of Evidence, 52 DUKE L.J. 683, (2003), at 730-34
209. Russ Versteeg, Jurimetric Copyright: Future Shock for the Visual Arts, 13 CARDOZO ARTS & ENT. L.J. 125, 132 (1995) (discussing the practical problem of proof addressed by fixation).
210. U.S. CONST. art. I, § 8, cl. 8.
211. See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (noting copyright's pur-pose of "promoting broad public availability").
212. See, e.g., Joseph C. Merschman, Note, Anchoring Copyright Laws in the Copyright Clause: Halting the Commerce Clause End Run Around Limits on Congress's Copyright Power, 34 CONN. L. REV. 661, 681 (2002) (noting that the fixation requirement is critical to the bargain between society and copyright holders).
213. HARRY MILLER LYDENBERG & JOHN ARCHER, THE CARE AND REPAIR OF BOOKS 17-26 (1945).
214. LIBRARY OF CONG., REDEFINING FILM PRESERVATION: A NATIONAL PLAN 1 (1994), available at http://www.loc.gov/film/plan.html (describing the dangers posed to "old films from nitrate deteriora-tion and newer films from color fading and the 'vinegar syndrome'").
215. JEFF ROTHENBERG, AVOIDING TECHNOLOGICAL QUICKSAND: FINDING A VIABLE TECHNICAL FOUNDATION FOR DIGITAL PRESERVATION 2 (1999), http://www.clir.org/pubs/reports/rothenberg/pub77.pdf (noting that "the physical lifetimes of digital storage media are often surprisingly short").
216. See Ira L. Brandriss, Writing in Frost on a Window Pane: Email and Chatting on RAM and Copyright Fixation, 43 J. COPYRIGHT SOC'Y U.S.A. 237, 237 (1996) (arguing that RAM instantiations are insufficiently permanent to be considered fixed for copyrightability purposes)
217. see also Donald M. Millinger, Copyright and the Fine Artist, 48 GEO. WASH. L. REV. 354, 359 (1980) (suggesting that site specific art installations that "last only a few days or weeks" fail to satisfy the fixation requirement); Joan Infarinato, Note, Copyright Protection for Short-Lived Works of Art, 51 FORDHAM L. REV. 90, 112 (1982) (expressing uncertainty as to whether works lasting three months are sufficiently fixed).
218. Tony Long, 'Feb. 21, 1947: Take a Polaroid' Enters the English Language, WIRED.COM, Feb. 21, 2008, http://www.wired.com/science/discoveries/news/2008/02/dayintech_0221.
219. We might also question the extent to which the authors of such short-lived works want or require copyright protection. In this sense a stable fixation may serve as a useful gauge for whether copyright exclusivity is necessary to incentivize creation. See Brandriss, Ira L. Brandriss, Writing in Frost on a Window Pane: Email and Chatting on RAM and Copyright Fixation, 43 J. COPYRIGHT SOC'Y U.S.A. 237, 237 (1996), at 242-44.
220. But see Patterson v. Century Prods., Inc., 93 F.2d 489, 493 (2d Cir. 1937) (suggesting that "a painting reproduced in colors that quickly faded to leave the canvas blank would, when the reproduction was complete, be a copy regardless of its life as such"). In Patterson, the court held that the unautho-rized exhibition of a motion picture constituted a "copy" under the Copyright Act of 1909, which in-cluded no general right of public performance.
221. Patterson v. Century Prods., Inc., 93 F.2d 489, (2d Cir. 1937) at 492-93. To the extent the Second Circuit's reading of "copy" under the 1909 Act bears on the proper understanding of that term under the 1976 Act, the court's earlier reading appears to have been implicitly rejected in Cartoon Network.
222. SCOTT MUELLER, UPGRADING AND REPAIRING PCS (2003), at 416-17.
223. Admittedly, an approach that would result in inconsistent protection for authors who took iden-tical steps to achieve fixation could be characterized as unfair. But without the public benefits of fixa-tion, the copyright grant under such circumstances would be entirely one-sided.
224. 245 F. Supp. 587 (S.D.N.Y. 1965).
225. 245 F. Supp. (S.D.N.Y. 1965). at 588.
226. 245 F. Supp. (S.D.N.Y. 1965). at 588.
227. 245 F. Supp. (S.D.N.Y. 1965). at 588-89.
228. 245 F. Supp. (S.D.N.Y. 1965). at 589.
229. 245 F. Supp. (S.D.N.Y. 1965). at 588. The court largely ignored this undoubtedly fixed copy of the broadcast on the grounds that it was never commercially exploited by CBS.
230. 245 F. Supp. (S.D.N.Y. 1965).at 588.
231. See Copyright Act of 1909, ch. 320, § 1, 35 Stat. 1075, 1075-76 (1909).
232. Mura, 245 F. Supp. at 589.
233. Mura, 245 F. Supp. at 590.
234. No. C 92 1539-FMS, 1994 WL 446049, at *5 (N.D. Cal. Mar. 18, 1994), aff'd in part, rev'd in part, 64 F.3d 1330 (9th Cir. 1995).
235. No. C 92 1539-FMS, 1994 WL 446049, at *5 (N.D. Cal. Mar. 18, 1994).
236. No. C 92 1539-FMS, 1994 WL 446049, at *5 (N.D. Cal. Mar. 18, 1994). But see infra Part III.B.
237. 373 F.3d 544 (4th Cir. 2004).
238. 373 F.3d 544 (4th Cir. 2004) at 546.
239. 373 F.3d 544 (4th Cir. 2004) at 547.
240. 373 F.3d 544 (4th Cir. 2004) at 547.
241. 373 F.3d 544 (4th Cir. 2004) at 548
242. 373 F.3d 544 (4th Cir. 2004) at 550.
243. 373 F.3d 544 (4th Cir. 2004) at 549-50. CoStar included an indirect infringement claim in its complaint, but the parties later stipulated to its dismissal.
244. 373 F.3d 544 (4th Cir. 2004) at 549-50 at 547.
245. 373 F.3d 544 (4th Cir. 2004) at 551.
246. 373 F.3d 544 (4th Cir. 2004) at 551. In an effort to reconcile its treatment of RAM instantiations with Peak's broad holding, the court distinguished the CoStar facts on the grounds that any temporary instantiations created on Loop-Net's servers were used solely to "automatically receive[] ... and transmit[]" information to users. 373 F.3d 544 (4th Cir. 2004) at 551. maintains that, unlike in Peak, the instantiations did not "function[] in the service of the comput-er or its owner."
247. 373 F.3d 544 (4th Cir. 2004) at 551.
248. CoStar's efforts to distinguish its facts underscore the acrobatics that Peak demands from any court offering a nuanced analysis of RAM instantiations. The images at issue in CoStar were unquestionably used by LoopNet in creating and operating its site. Those RAM instantiations "function[ed] in the ser-vice" of LoopNet, just as instantiations of computer software function in the service of their user. The fact that LoopNet was a passive operator of its server, with no knowledge of the unauthorized na-ture of its use, might demonstrate its lack of volition, but it is irrelevant to the question of fixation.
249. 373 F.3d 544 (4th Cir. 2004) at 551.
250. Cartoon Network LP v. CSC Holdings, 536 F.3d 121, 130 (2d Cir. 2008).
251. Access to the work contained in a copy, for example, could be restricted through encryption.
252. Television and radio broadcasting are examples of enabling access without necessarily creating copies.
253. See I. Trotter Hardy, Computer RAM "Copies": Hit or Myth? Historical Perspectives on Cach-ing as a Microcosm of Current Copyright Concerns, 22 U. DAYTON L. REV. 423, 453 (1997) (suggest-ing that courts have interpreted "copies" to include RAM instantiations as a means of providing an exclusive right to "access and use" information).
254. For example, the increasing reliance on cloud computing, a model that relies on remotely stored data and software accessed by users through the Internet rather than locally stored files, has increased copyright-holder concern over the need to regulate access to their works. See Brief for Copyright Al-liance as Amicus Curiae Supporting Petitioners, Cable News Network, Inc. v. CSC Holdings, 129 S.Ct. 2890 (2009) (No. 08-448), 2008 WL 4887717, at *15-16 (noting that economic value can be realized from copyrighted works, without distributing stable copies, through application service provider and cloud computing business models).
255. Cable News Network, Inc. v. CSC Holdings, 129 S.Ct. 2890 (2009) (No. 08-448), 2008 WL 4887717, at *15-16
256. See 17 U.S.C. § 106(1) (2006)
257. 18 U.S.C. § 2319B (2006) (prohibiting the "[u]nauthorized re-cording of Motion pictures in a Motion picture exhibition facility").
258. 17 U.S.C. § 1201(a).
259. See 18 U.S.C. § 1030 (defining circumstances under which accessing a computer is unlawful).
260. See R. Anthony Reese, The Public Display Right: The Copyright Act's Neglected Solution to the Controversy Over RAM "Copies", 2001 U. ILL. L. REV., at 84.
261. See R. Anthony Reese, The Public Display Right: The Copyright Act's Neglected Solution to the Controversy Over RAM "Copies", 2001 U. ILL. L. REV. at 144-46.
262. See, e.g., Facebook, Inc. v. Power Ventures, Inc., No. C 08-5780 JF (RS), 2009 U.S. Dist. LEXIS 42367, at *12 (N.D. Cal. May 11, 2009) (denying a motion to dismiss a copyright infringement claim premised on accessing a website for purposes prohibited by the terms of use)
263. MDY Indus., LLC v. Blizzard Entm't, Inc., No. CV-06-2555-PHX-DGC, 2008 U.S. Dist. LEXIS 53988, at *10-11, 52 (D. Ariz. July 14, 2008) (granting summary judgment on a contributory copyright infringement claim against a developer of interoperable software premised on the creation of unauthorized RAM copies by end users)
264. Ticketmaster L.L.C. v. RMG Techs., Inc., 507 F. Supp. 2d 1096, 1104, 1116-17 (C.D. Cal. 2007) (finding a strong likelihood of success on claims for direct and contributory copyright infringe-ment against a developer of automated ticket purchasing software for creating unauthorized RAM copies of a ticket vendor's website).
265. MDY, 2008 U.S. Dist. LEXIS 53988.
266. MDY, 2008 U.S. Dist. LEXIS 53988. at *2-3.
267. MDY, 2008 U.S. Dist. LEXIS 53988. at *2.
268. MDY, 2008 U.S. Dist. LEXIS 53988. at *12-13, *16.
269. MDY, 2008 U.S. Dist. LEXIS 53988. at *3-4.
270. MDY, 2008 U.S. Dist. LEXIS 53988. at *4.
271. MDY, 2008 U.S. Dist. LEXIS 53988. at *5-6.
272. MDY, 2008 U.S. Dist. LEXIS 53988. at *21.
273. MDY, 2008 U.S. Dist. LEXIS 53988. at *19.
274. MDY, 2008 U.S. Dist. LEXIS 53988. at *52.
275. Cf. J.F. Wilkinson, The Play-Money Game That Made Millions, SPORTS ILLUSTRATED, Dec. 2, 1963, at 54 ("You can go up to almost any literate American older than 10 and say: 'Go directly to jail. Do not pass Go. Do not collect $200,' and he will surely know that you are talking about Monopoly.").
276. Query whether the average consumer would be aware of his assent to such conditions. The terms currently governing use of the iTunes Store weigh in at roughly 15,000 words.
277. See Terms and Conditions, APPLE INC., http://www.apple.com/legal/itunes/us/terms.html (last visited Aug. 9, 2010).
278. See 17 U.S.C. § 504(c) (2006) (providing for damages ranging from $750 to $30,000 per in-fringed work absent a showing of willfulness, and up to $150,000 per work in cases of willful infringe-ment). For a criticism of the size and unpredictability of statutory damages in copyright law
279. Pamela Samuelson & Tara Wheatland, Statutory Damages in Copyright Law: A Remedy in Need of Reform, 51 WM. & MARY L. REV. 439 (2009).
280. See MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT (2009), at § 14.06[A][1][b] (describing the issuance of pre-liminary injunctions in copyright infringement actions as "ordinary, even commonplace").
281. See, e.g., Triad Sys. Corp. v. Se. Express Co., No. C 92 1539-FMS, 1994 WL 446049, at *5 (N.D. Cal. Mar. 18, 1994) (finding that a RAM instantiation was "the functional equivalent of a longer lasting copy" because it enabled use of software).
282. See 17 U.S.C. § 106(3).
283. See Paul Edward Geller, Beyond the Copyright Crisis: Principles for Change, 55 J. COPYRIGHT SOC'Y 165, 173-74 (2008) (arguing that the right of reproduction is an important component of the cop-yright grant, "but only to the extent that creations continue to be exploited in the guise of hard copies" through, for example, distribution).
284. See SCOTT MUELLER, UPGRADING AND REPAIRING PCS (2003), at 417.
285. See, e.g., Brief of Plaintiffs-Counterclaim-Defendants-Appellees at 49-50, Cartoon Network LP v. CSC Holdings, 536 F.3d 121 (2d Cir. 2008) (Nos. 07-1480-cv(L), 07-1511-cv(CON)), 2007 WL 6101601 (arguing that the buffer copies in the RS-DVR Service are "fixed" because "they exist long enough to be reproduced" into more permanent copies).
286. See London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 175 n.29 (D. Mass. 2008) (deter-mining that electronic phonorecords obtained from peer to peer services "precisely to be copies, indefi-nitely replayable and transferable" were fixed). But the London-Sire court recognized "that electronic copies can be of varying permanence ... and it is not clear that all of them should be treated equally un-der the copyright statutes."
287. London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 175 n.29 (D. Mass. 2008)
288. (citing MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518-19 (9th Cir. 1993)).
289. See, e.g., SimplexGrinnell LP v. Integrated Sys. & Power, Inc., 642 F. Supp. 2d 167, 189 (S.D.N.Y. 2009) (finding a copy created when software was loaded into RAM for "several minutes to several hours")
290. Advanced Computer Servs. v. MAI Sys. Corp., 845 F. Supp. 356, 363 (E.D. Va. 1994) (suggesting that RAM instantiations persisting for "seconds or fractions of a second ... arguably would be too ephemeral to be considered 'fixed' or a 'copy'" while those persisting for "minutes or longer" are copies).