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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[]

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[]


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[]

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.