Friday, October 01, 2004

More on Copying and Authorized Access

I just found the case that makes my point about copying being a required element of "accessing" a digital work. It's MAI v. Peak (9th Cir. 1993). Here's a quote from the ruling courtesy of
We have found no case which specifically holds that the copying of software into RAM creates a “copy” under the Copyright Act. However, it is generally accepted that the loading of software into a computer constitutes the creation of a copy under the Copyright Act. We recognize that these authorities are somewhat troubling since they do not specify that a copy is created regardless of whether the software is loaded into the RAM, the hard disk or the read only memory (“ROM”). However, since we find that the copy created in the RAM can be “perceived, reproduced, or otherwise communicated,” we hold that the loading of software into the RAM creates a copy under the Copyright Act.
Taken together with the Skylink test, it is clear (at least to me) that consumers are authorized to copy digital works that have been obtained legitimately. Here's the logic:
  1. The Skylink decision makes it perfectly clear that copyright holders cannot withhold any rights that would prohibit a consumer from accessing a work that has been obtained legitimately.
  2. MAI v. Peak, makes it perfectly clear that the act of merely loading a digital work into RAM constitutes a copy under the Copyright Act.
It doesn't matter whether the copying is done in your DVD player, CD player, or your desktop computer, copying is a required element of "accessing" a digital work and existing case-law establishes the precedent.

If you are authorized to access a digital work, then you are automatically authorized to copy it. Period.

There's also this lovely quote from the congressional record...
Congress has long recognized that it is necessary to make incidental copies of digital works in order to use them on computers. Programs or data must be transferred from a floppy disk to a hard disk or from a hard disk into RAM as a necessary step in their use. Modern operating systems swap data between RAM and hard disk to use the computer memory more efficiently. Given its purpose, it is not the intent of this bill to have the incidental copies made by the user of digital work be counted more than once in computing the total retail value of the infringing reproductions.
Would you guess Orin Hatch said this?