On Thu, 1 May 1997, Benedict A. Monachino <rictylbam1[_at_]aol.com> wrote:
>
> I think it has been established that when a work is loaded
> onto a computer, it is loaded into memory, and that copy in memory
> is considered to be a copy of the work. The inner workings of
> computer memory, if I may grossly oversimplify, is that a series of
> silicone blocks are set to 0 or 1. Thus, you have a situation
> where a series of numbers in a computer's memory chip is considered
> a copy. Why not a series of numbers coursing as electrical
> impulses through a phone wire and over a modem? Should they really
> be considered as copies? I don't think so. Considering these
> things as "copies" is, in my opinion akin to claiming that the
> image of an item which reflects on the back of the retina of the
> eye is an infringing copy.
Actually, I think that your first statement might be a bit broad. What has been held is that when software is loaded into memory for execution, a copy exists for copyright purposes. I'm not sure if that rule has been extended to other kinds of works. 17 U.S.C. 117(1) explicitly recognizes that for a program to execute, it must be loaded into memory, and it exempts the copying of the executable to memory from being a copyright violation provided that the copying is done only in preparation to execute the program.
The comparison to electrical impulses in a telephone line is interesting but flawed. If I send a file to another person across the telephone lines, I have indeed made another copy which is ultimately held by the recipient and was temporarily in the telephone line, and that copy can be "perceived, reproduced, or otherwise communicated." 17 U.S.C. section 101. However, that is only copy in the non-copyright sense, because it also must be fixed, and that requires that it be "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Id. In the case of the telephone line as well as your retina, the transience defeats it. In the case of computer memory, data, especially programs, often remain fixed for long periods of time.
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