Digital Law Online: RAM Copies

One remaining question is whether the copying of a program from a disk drive into RAM for its execution is the making of a reproduction of that work, the first of the exclusive rights in copyright. Although the answer seems obvious, it is complicated by the fact that the exclusive right is to “reproduce the copyrighted work in copies” and copies require that the work be fixed. Section 101 states:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. {FN31: 17 U.S.C. §101}

II.C.1. MAI v. Peak: Fixed Reproductions

But if the contents of a RAM disappear when power is removed from the RAM, is the work fixed in the RAM so that it can be considered a copy? The Ninth Circuit considered this question in MAI v. Peak. {FN32: 991 F.2d 511, 26 USPQ2d 1458 (9th Cir. 1993)}

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. . . .

The law also supports the conclusion that Peak’s loading of copyrighted software into RAM creates a “copy” of that software in violation of the Copyright Act. In Apple Computer, Inc. v. Formula Int’l, Inc., the district court held that the copying of copyrighted software onto silicon chips and subsequent sale of those chips is not protected by Section 117 of the Copyright Act. Section 117 allows “the ‘owner’ of a copy of a computer program to make or authorize the making of another copy” without infringing copyright law, if it “is an essential step in the utilization of the computer program” or if the new copy is “for archival purposes only.” One of the grounds for finding that 117 did not apply was the court’s conclusion that the permanent copying of the software onto the silicon chips was not an “essential step” in the utilization of the software because the software could be used through RAM without making a permanent copy. The court stated:

RAM can be simply defined as a computer component in which data and computer programs can be temporarily recorded. Thus, the purchaser of software desiring to utilize all of the programs on the diskette could arrange to copy the software into RAM. This would only be a temporary fixation. It is a property of RAM that when the computer is turned off, the copy of the program recorded in RAM is lost.

While we recognize that this language is not dispositive, it supports the view that the copy made in RAM is “fixed” and qualifies as a copy under the Copyright Act.

We have found no case which specifically holds that the copying of software into RAM creates a “copy” under the Copyright Act. However, it is generally accepted that the loading of software into a computer constitutes the creation of a copy under the Copyright Act. We recognize that these authorities are somewhat troubling since they do not specify that a copy is created regardless of whether the software is loaded into the RAM, the hard disk or the read only memory (“ROM”). However, since we find that the copy created in the RAM can be “perceived, reproduced, or otherwise communicated,” we hold that the loading of software into the RAM creates a copy under the Copyright Act. We affirm the district court’s grant of summary judgment as well as the permanent injunction as it relates to this issue. {FN33: 991 F.2d at 518-519, 26 USPQ2d at 1463-1464 (citations omitted)}

II.C.2. A Better Way to Look at RAM Copies

Perhaps a better way of looking at whether something is fixed is whether it can be read or copied at some arbitrary later time, absent some external event that destroys the work. In the case of RAM, it is possible to read the work as long as it hasn’t been overwritten or the power hasn’t been removed. In the case of a videotape, it can be viewed unless it is erased or otherwise destroyed. In contrast, the image of a movie on a screen or a television show on a cathode ray tube or bits being transmitted on a wire fade away “automatically” at a predictable time, so that the image can no longer be perceived, and therefore is not fixed. (Although in a dynamic RAM the individual bits also fade away, the memory system has a refreshing component that extends their life, so when the entire memory system is considered, the bits are fixed unless there is some external event such as the removal of power that causes the refreshing to stop.)

But when one considers the loading of a program into RAM from the disk making of a copy, there is a problem. The criminal infringement provision, Section 506, {FN34: 17 U.S.C. §506} was amended in 1997 by the No Electronic Theft (NET) Act {FN35: Pub. L. No. 105-147, 111 Stat. 2678} so that criminal infringement occurs not only when the infringement was willful and for purposes of commercial advantage or private financial gain, but also if there has been the reproduction or distribution during any 180-day period of copies having a total retail value of more than $1,000. So if you have a program with a retail value of $100, and you run it 11 times, you have made 11 copies of the program, with a total value of $1,100, by reproducing the disk copy to RAM.

Clearly, this was not the intent of Congress, although it is the logical consequence of combining the NET Act’s language with the decision in MAI v. Peak. Concerned about this problem, the chairman of the Senate Committee on the Judiciary, Senator Orrin Hatch, made the following floor statement when the Senate was considering the NET Act:

Congress has long recognized that it is necessary to make incidental copies of digital works in order to use them on computers. Programs or data must be transferred from a floppy disk to a hard disk or from a hard disk into RAM as a necessary step in their use. Modern operating systems swap data between RAM and hard disk to use the computer memory more efficiently. Given its purpose, it is not the intent of this bill to have the incidental copies made by the user of digital work be counted more than once in computing the total retail value of the infringing reproductions. {FN36: 143 Cong. Rec. at S12690}

He was also concerned about the effect of the bill on making archival copies of computer programs:

Because most shrink-wrap licenses purport to make the purchaser of computer software a licensee and not an owner of his or her copy of the software, the ordinary purchaser of software may not be able to take advantage of the exemption provided by sec. 117, allowing the “owner” of a copy to reproduce the work in order to use it in his or her computer.

Many shrink-wrap licenses limit the purchaser to making only a single backup copy of his or her software. Thus, under a literal reading of the bill, the ordinary purchaser of computer software who loaded the software enough times in the 180-day period to reach the more-than-$1,000 threshold may be a criminal! This is, of course, not the intent of the bill. Clearly, this kind of copying was not intended to be criminalized. {FN37: 143 Cong. Rec. at S12690}

II.D. Summary

It is now well-accepted that copyright protects computer programs and other digital information, whether they are in readable source code form or are an executable program that is intended to be understood only by a computer. Copies are made whenever the program is transferred from floppy disk to hard disk or is read into the computer’s memory for execution, and those copies will infringe the copyright of the computer program if they are not permitted by the copyright owner or by copyright law.

As computer programs have become more complicated, that may be sufficient in most instances. Most, if not virtually all, copyright infringement of today’s operating systems or applications programs consists of the complete copying of that program onto a compact disc or other distribution medium, the preloading of the program onto the hard disk of a computer being sold, or the distributing of the program over the Internet without authorization. These acts are obviously wrong, and so there is little difficulty in finding that they are copyright infringement.

Next section: Beyond Mere Copying