Citation Edit

Advanced Computer Servs. of Mich., Inc. v. MAI Sys. Corp., 845 F. Supp. 356, 30 U.S.P.Q.2d (BNA) 1443 (E.D. Va. 1994) (full-text).

Factual Background Edit

Several independent service organizations (ISOs) sued MAI for antitrust violations. MAI counterclaimed, inter alia, for copyright infringement. The ISOs claimed that their copying of the MAI software was a fair use.

Trial Court Proceedings Edit

Fixation Edit

The court held that the conclusion that a program stored only in RAM is sufficiently fixed is confirmed, not refuted, by the argument that it "disappears from RAM the instant the computer is turned off"; if power remains on (and the work remains in RAM) for only seconds or fractions of a second), "the resulting RAM representation of the program arguably would be too ephemeral to be considered 'fixed'."

Fair use defense Edit

As to the first fair use factor, the court invoked the Sony language about commercial uses being presumptively unfair, rejecting the ISOs public benefit argument.[1] The court held that the public benefit from fair use “typically involves the development of art, science, and industry, and not . . . the purely financial interest of customers.”[2]

The second fair use factor was seen as cutting against the ISOs, because software is “essentially a creative work.” The third factor, the extent of the copying, also favored MAI because booting the software usually copies “the entirety” and always copies the “heart of the copyrighted material.”[3]

The fourth factor also favored MAI, because the court defined the relevant market not as the market for computer systems, but as the market for licensing of the software.[4]


  1. 845 F. Supp. at 365.
  2. Id. (citations omitted.)
  3. Id. at 365-66.
  4. Id. at 366.

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