On Mon, 05 May 1997, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> Bob Stock <bstock[_at_]ucla.edu> writes:
> >
> > 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."
[snip]
> > In the case of computer memory, data, especially programs, often
> > remain fixed for long periods of time.
>
> But how is "transitory duration" to be defined? If you accept MAI
> v. Peak, it is read out of the act entirely -- the court simply
> doesn't discuss this limitation at all.
I agree that the court gave it only a, uh, transitory discussion, but it did discuss it:
"Peak argues that this loading of copyrighted software does not constitute a copyright violation because the "copy" created in RAM is not "fixed." However, by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer, MAI has adequately shown that the representation created in the RAM is 'sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."
After reviewing the record, we find no specific facts (and Peak points to none) which indicate that the copy created in the RAM is not fixed."
MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).
> If you read the legislative history of the 1976 Act, anything
> "captured momentarily in the memory of a computer" is *not* fixed.
> [MAI ignores this language, too].
I'd skip the "too," but it's true the court does not include this language in its opinion. However, as I understand it, MAI manufactured both the computers and the operating system to run those computers. Therefore, when you turn on the computer, the operating system is loaded into memory. Although it might have been helpful for the court to note the legislative history language and explain that loading operating system software is hardly "momentary," I'm not sure that it was necessary to include it.
> ACS v. MAI set up a new dichotomy -- a copy in RAM is fixed only if
> it actually *does* last for several minutes, regardless of how
> quickly it *could have been* deleted or how long it could have
> remained on the system. It's an interesting approach, but I
> suspect it could be gamed successfully.
I dunno, it seems to me that you're unhappy with the brief discussion of transitory in Peak, yet still unhappy with the much longer discussion in ACS. :) What would you suggest?
As far as ACS is concerned, if we're going to start counting the amount of time that the software is in RAM, then I would have to disagree with your use of the word "several." My reading of ACS is that certainly two minutes would suffice, and perhaps only one. The court actually refuses to set a specific threshold, saying, "It is unnecessary here to decide precisely where along the time continuum the line should be drawn between RAM representations of a program that are of a sufficient duration to be "fixed" and those that are not. MAI's copyright infringement claim is not aimed at situations where the power to the computer is turned off and the RAM erased within a second of the completion of loading. Instead, MAI's attack focuses on those situations where the computer is left on for a time measured in minutes, if not longer."
Advanced Computer Services of Michigan, Inc. v. MAI Systems Corp., 845 F. Supp. 356 (E.D. Va. 1994).
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