Intellectual Property Law

Buffer Copies do not Violate Copyright Law

By IBLS Editor

Courts have considered whether the copying of a program from a disk drive into RAM for its execution constitutes a reproduction of that work, which is the first of the exclusive rights in copyright. An appellate court in the U.S. held that fleeting, transitory copies like the so-called "buffer copies" do not render someone liable for copyright infringement.  A buffer copy is a copy that is made in the course of digital transfer. It is not intended to be directly viewed, accessed, or used by anyone. It is merely a step in the relay of information from one source to another.

According to § 101 of Title 17 U.S.C. (the ?Copyright Act?), 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. A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
In a 2008 judgment in Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. N.Y. 2008), the court considered whether the lower court expanded the Copyright Act?s definition of ?fixation? by finding that a series of three video frames temporarily stored in a computer?s RAM buffer before being overwritten with other content were sufficiently ?fixed? to constitute ?copies? of the work.

The Court of Appeals for the Second Circuit held that acts of buffering in the operation of the RS-DVR do not create copies, as defined by the Copyright Act. The court reasoned that, during the course of buffering ?no bit of data remains in any buffer for more than a fleeting 1.2 seconds.? The court differentiated this situation from a case where data remains embodied in a computer?s RAM memory until the user turned the computer off. Because the data was embodied in the buffer for only a ?transitory? period, the statute?s duration requirement was not fulfilled and the data was not deemed to be fixed.

The legal problem with finding the tenth-of-a-second RAM buffer copy to be a separate infringement is that it effectively erases the ?more than transitory duration? requirement from the Copyright Act?s definition of ?fixation.? The practical problem is that there is virtually no piece of modern technology that does not store information in RAM at some point in the course of copying it or transmitting it elsewhere. If every one of those temporary RAM buffer copies is a separate act of infringement, it potentially multiplies the scope of possible liability in any case in which the work is stored in digital form.

Since digital technology is based upon copying data, copyrighted material is going to be reproduced all the time. Every time one views a streaming video, a ?copy? is made of the video as it gets buffered. One should not be penalized for copying the video in this manner. Every electronic device with a buffer, such as, for example, skip-free CD players, may become a source of a lawsuit or, in the case of litigation-averse companies, a source of licensing revenue.

Full post as published by IBLS Internet Law Blog on November 19, 2008 (boomark / email).