A DURATION NO MORE THAN NECESSARY: A PROPOSED TEST FOR THE DURATION REQUIREMENT OF RAM-COPY FIXATION

Circuit Courts are split on whether a temporary duplicate of a copyrighted work in Random Access Memory (RAM) constitutes a copy under the Copyright Act of 1976. The Ninth Circuit interprets the statutory definition of fixation in § 101 of the 1976 Act by requiring only that the embodiment of a copy...

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Bibliographic Details
Published inJurimetrics (Chicago, Ill.) Vol. 51; no. 2; pp. 217 - 243
Main Author Shen, Li-Jen
Format Journal Article
LanguageEnglish
Published Chicago American Bar Association 01.01.2011
Subjects
Computers
Copyright
Copyright infringement
Copyright laws
Copyrights
Defendants
DEVELOPMENTS IN SCIENCE AND TECHNOLOGY LAW
Digital computers
Duration
Fair use
Fair use (Copyright)
Intellectual property
Laws, regulations and rules
Plaintiffs
Random access memory
Social media
Trials
Web pages
Web sites
Websites
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Summary:Circuit Courts are split on whether a temporary duplicate of a copyrighted work in Random Access Memory (RAM) constitutes a copy under the Copyright Act of 1976. The Ninth Circuit interprets the statutory definition of fixation in § 101 of the 1976 Act by requiring only that the embodiment of a copyrighted work be "perceived, reproduced, or otherwise communicated." But the Second and Fourth Circuits expand on this requirement and consider the language in § 101, "for a period of more than transitory duration," an indispensable requirement as well. One problem in the duration requirement is that when an Internet Service Provider (ISP), under the request of a user, accesses certain materials by referring to copyrighted electronic files, the downloaded file automatically becomes an unauthorized copy under the Ninth Circuit standard. This is true even if the materials' copyright belongs to the user. Another problem is that there is no bright-line rule on how long the period should be for the embodiment to be fixed. To effectively resolve this issue, courts should refer to the goals and policies underlying copyright law in determining whether an embodiment was "fixed." The threshold "period of more than transitory duration" should not be a set figure. Rather, a copy should be considered fixed under § 101 if the period of caching is longer than what is necessary for a fair-use conduct to acquire the required information. The key is whether such a temporary duplicate will put the copyrighted work at the risk of being unlawfully distributed.
ISSN:0897-1277
2154-4344