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Temporary copies

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Overview Edit

The right to reproduce a work in copies is the first and most fundamental of the bundle of rights that make up a copyright. In the online environment, this right is even more central, as copies are made in the course of virtually every network transmission of a digital copy.

More broadly, the transmission of any information over the Internet — including content protected by copyright — inherently requires numerous temporary copies or buffers to be made as the information traverses the network. As information is transported from switch to switch and server to server across the Internet, temporary copies are made at every stopping point. Without temporary copies, no communications could flow across the Internet.

Temporary copies may be a key aspect of the value of the use in some circumstances, but merely incidental in others.

The ability to control temporary copying in digital devices has long been important to rights owners. For software in particular, consumers increasingly engage in the exploitation of software they receive over a network without ever knowingly storing a permanent copy on their hard drive.[1] Temporary copies are also prevalent in the context of streaming sound recordings and video, where "buffer copies" are a technologically necessary step in the delivery of content to the consumer.

It has long been clear in U.S. law that the reproduction right is not limited solely to the making of "permanent" physical copies.[2] The statutory definitions cover any fixation "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." In the seminal 1993 case MAI Systems Corp. v. Peak Computer, Inc., the Ninth Circuit applied these definitions to hold that when a program is loaded into RAM, a copy is created.

In a 2001 Report, the Copyright Office confirmed its agreement, noting that "[a]lthough it is theoretically possible that information . . . could be stored in RAM for such a short period of time that it could not be retrieved, displayed, copied or communicated, this is unlikely to happen in practice."[3] While the central premise of the MAI decision has been consistently upheld,[4] U.S. courts continue to refine in what circumstances a reproduction may be too short-lived to qualify as a copy.[5]

Even if a [[copy is made, of course, it may not be infringing. The 1976 Copyright Act contains several specific limitations permitting temporary copies, including those made to allow the ordinary use or repair of a computer[6] or for purposes of re-broadcasting,[7] and ephemeral recordings used by non-interactive audio services.[8]

Temporary reproductions may also qualify as fair use in appropriate circumstances.[9] The Copyright Office has stated that a fair use case could be made for buffer copies that are made in the process of streaming content because, although the use is not transformative and is for a commercial purpose, the reproduction is made "solely to render a performance that is fully licensed" and "facilitates an already existing market for the authorized and lawful streaming of works," especially where they are made internally solely to enable an otherwise lawful use.[10] Further certainty could be provided through the adoption of a new statutory exception.[11]

International law Edit

This issue has received significant international attention. The World Intellectual Property Organization Internet Treaties explicitly confirm that the reproduction right as well as the exceptions thereto apply fully in the digital environment, and that the right extends to storage in an electronic medium.59

In implementing these treaties, the European Union (EU) specified that the right covers "direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part."60 Again, however, the broad coverage of the right does not mean that all reproductions require authorization. The Directive also contains a mandatory exception for certain "[t]emporary acts of reproduction . . . , which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use," which have no "independent economic significance."61

Although many countries have, like the United States, determined that their existing reproduction right covers temporary reproductions, some have amended their laws to explicitly clarify the coverage of such copies.62 And the United States' bilateral free trade agreements incorporate obligations to extend the reproduction right to temporary storage in any manner or form.63

References Edit

  1. In other words, they access the software according to their license terms, load it into their computer's random access memory (RAM), use it and then close the program or shut down the computer — with the software only being temporarily stored on the computer's or server's hard drive.
  2. See Final Report of the National Commission on New Technological Uses of Copyrighted Works, at 12-13, 22; Computer Software Copyright Act of 1980; MAI Systems Corp. v. Peak Computer, Inc..
  3. U.S. Copyright Office, DMCA Section 104 Report ("A Report of the Register of Copyrights Pursuant to §104 of the Digital Millennium Copyright Act") (full-text).
  4. See Carson v. Verismart Software, 2012 U.S. Dist. LEXIS 42166 at *8-9 (N.D. Cal. Mar. 27, 2012) (full-text); CoStar Realty Information, Inc. v. Field, 2010 U.S. Dist. LEXIS 135016 at 19 (D. Md. Dec. 20, 2010); DocMagic, Inc. v. Ellie Mae, Inc., 745 F.Supp.2d 1119 (N.D. Cal. 2010) (full-text); Apple, Inc. v. Psystar Corp., 673 F.Supp.2d 931, 935 (N.D. Cal. 2009) (full-text); [[Quantum Sys. Integrators, Inc. v. Sprint Nextel Corp., 2009 U.S. App. LEXIS 14766, at 18-19 (4th Cir. July 7, 2009).
  5. See, e.g., Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 129-30 (2d Cir. 2008), cert. denied, 557 U.S. 946 (2009) (holding that buffer copies existing for no longer than 1.2 seconds are not fixed and therefore do not qualify as copies under the 1976 Copyright Act); CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 551 (4th Cir. 2004) (noting that an ISP that acts as conduit for users' material does not engage in acts of reproduction because the copies are not fixed for more than transitory duration).
  6. 17 U.S.C. §117(c).
  7. Id. §112(a).
  8. Id. §112(e). These ephemeral copies are subject to a statutory license, the rates and terms of which are set in conjunction with the statutory license for the digital public performance of sound recordings under Section 114.
  9. See, e.g., Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D. Cal. 2006), aff'd sub nom Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1169 (9th Cir. 2007); , Field v. Google, 412 F.Supp.2d 1106, 1118 (D. Nev. 2006); 4 M. Nimmer & D. Nimmer, Nimmer on Copyright §13.05[G], at 13-280 ("To the extent that infringers afford access to others' copyrighted works via making those works accessible in users' RAM, then liability should follow . . . . On the other hand, to the extent that RAM copies appear in the background and are not accessed, are created automatically, or exist solely to minimize unnecessary bandwidth usage of otherwise noninfringing conduct, then fair use should be given maximal latitude.")
  10. Digital Millennium Copyright Act Section 104 Study, at 133-40.
  11. See id. at 141-46 (in the context of music licensing, recommending the adoption of a specific exception for temporary buffer copies).

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