RAM Copying - An Issue of More Than Transitory Duration
In The Cartoon Network LP, LLP v. CSC Holdings, Inc., No. 07-1480 & 07-1511 (S.D.N.Y. Aug. 4, 2008), the Second Circuit considered several important issues on the way to concluding that Cablevision's proposed operation of a remote digital video recorder (RS-DVR) system does not infringe the rights of reproduction and public performance of its program providers.
Perhaps the most important issue in the case for new media lawyers is the court's treatment of the issue of RAM, or buffer, copying. The Second Circuit concluded that while a copy in RAM may a "copy" under the Copyright Act, it is not a copy as a matter of law. In so ruling, the Second Circuit took on not only the oft-cited (and oft-criticized) Ninth Circuit opinion in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), it also took on the opinion of the Copyright Office, and arguably created a split in the circuits on the issue.
It should come as no surprise that the RAM copying discussion in The Cartoon Network case has been much commented on. The opinion leaves open many questions for resolution in future cases. The issue of the copyright status of such copying will doubtless recur. As the district court noted in its (overruled) opinion, “All digital devices utilize transient data buffers, which are regions of memory that temporarily hold data.” Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp., 478 F.Supp.2d 607, 613 (S.D.N.Y. 2007).
Considering the fundamental nature of the issue, below is a review of the court's ruling with links to resources addressing the issue, including prior cases, a recent ruling, and some of the amicus briefs submitted in the case.
