Temporary copies

Overview
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.45 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.46 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.47 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.”48 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.49

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.”50 While the central premise of the MAI decision has been consistently upheld,51 U.S. courts continue to refine in what circumstances a reproduction may be too short-lived to qualify as a copy.52

Even if a copy is made, of course, it may not be infringing. The Copyright Act contains several specific limitations permitting temporary copies, including those made to allow the ordinary use or repair of a computer53 or for purposes of re-broadcasting,54 and ephemeral recordings used by non-interactive audio services.55

Temporary reproductions may also qualify as fair use in appropriate circumstances.56 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.57 Further certainty could be provided through the adoption of a new statutory exception.58