Copyright Infringement, Digital Devices and Electronic Discovery: Courts Have Random Access Memory Lapses

By Pete Salsich III

Beware the RAM . . .

From Gary's iPhone to my TiVo to your computer, we've begun to take the existence and use of digital devices almost completely for granted.  Most of us never think about the vast amounts of digital data that are being processed through our devices' random access memory (RAM).  On the most basic (non-technical) level, all digital devices create and very briefly store--often for only fractions of seconds--transient data "buffer" copies of digital information in order to ultimately display and/or process that information for the end user. 

Cool, but so what, right?


Well, thanks to Professor Matthew Sag's blog (which has a great name, by the way), we learn that the Southern District of New York recently held that these transient data "buffer" copies are sufficiently "fixed" to constitute individual discreet acts of copyright infringement.  See Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp., 478 F. Supp. 2d 607,621-22 (S.D.N.Y. 2007).  Professor Sag and a group of 27 other copyright and internet law professors around the country (including Lawrence Lessig at Stanford and Mark McKenna at St. Louis University) filed an amicus brief explaining in detail just how misguided and dangerous this ruling is.  In a nutshell, if this is the law, every user of a PDA, computer, digital video recorder or cell phone, and by extension every manufacturer of such devices, would be required to obtain permission from every possible owner of any copyrighted information contained or transmitted on these devices before using them.  Obviously such a scenario is completely unworkable, and -- as the professors point out -- is inconsistent with the plain language of the Copyright Act itself, which says that a work is "fixed" when it is "sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration." 17 U.S.C.  

The Electronic Frontier Foundation (EFF) and Center for Democracy and Technology (CDT) are fighting a similar battle with the court in Columbia Pictures, Inc. v. Bunnell, Case No. 2:06cv01093 (Central District of California).  There, in a case of first impression, the magistrate judge recently issued an order holding that information that passes through RAM is "electronically stored information" under Fed. R. Civ. P. 34, and therefore must be permanently stored and produced in response to a discovery request.  At issue was a request for production of a data server log containing information about customers who access the defendants' site.  The ruling is particularly onerous for the affected parties because it is apparently undisputed that--as part of their privacy policies--the defendants have never kept such a data server log.  The court ruled, however, that because the information was temporarily copied and stored in the servers' RAM, it was existing information under the custody and control of the defendants, and thus the discovery ruling did not require the creation of new data.  EFF and CDT have filed an amicus brief to aide the district judge in reconsidering the magistrate's ruling.  A hearing is set for July 23. 

In both of these cases, the courts appeared to rely on an over-simplistic understanding of both RAM technology and the Copyright Act, as well as a controversial 1993 9th Circuit case, MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), which suggested that information passing through RAM is sufficiently "fixed" to be a copy for copyright purposes, without any distinction for or recognition of the truly ephemeral nature of the transient buffer data currently at issue.  

These two cases are getting the attention of amicus writers, and rightly so, but I suspect that they represent only the tip of the iceberg when it comes to such issues, and that we're going to be seeing all sorts of similar attempts to fit digital technology into our analog legal world.  It will be interesting to see how these cases turn out and to watch future attempts by the courts to deal with this issue.  In the meantime, especially if you are a copyright litigator involved in a federal court discovery battle, beware the RAM.

Trackbacks (0) Links to blogs that reference this article Trackback URL
Comments (0) Read through and enter the discussion with the form at the end
Post A Comment / Question Use this form to add a comment to this entry.

Remember personal info?
Send To A Friend Use this form to send this entry to a friend via email.