Section 101 Ma2

In reaching the conclusion that the transfer of a computer program from a permanent storage device to a computer's RAM 41 constitutes a copy under copyright law, the court in MAI Systems relied primarily on the traditional indicia of a "copy" under 17 U.S.C. § 101. The court used a straightforward section 101 analysis to determine that copying did indeed take place and then to dismiss summarily the possibility of recourse to section 117 as a defense to copyright infringement.

The legislative history of section 117 indeed implies that CONTU's drafters believed that loading a computer program onto RAM might result in the creation of a potentially infringing copy, but this fact is of uncertain value. The CONTU report explains the need for a compromise

In Apple Computer, Inc. v. Formula International, Inc., the district court for the central district of California stated that loading a program onto RAM is "only a temporary fixation."45 Although the MAI Systems court considered the use of the word "fixation" in the Apple Computer decision to be support for the argument that a program is sufficiently fixed to pass the section 101 requirements,' the Apple Computer court was not referring to a fixation within the meaning of section 101 or any other part of the Copyright Act. On the contrary, the notion of a temporary fixation seems contrary to the section 101 explanation of the phrase "'fixed' in a tangible medium of expression," ' 47 which requires embodiment "for a period of more than transitory duration." ' By reasoning that a work is "fixed" when it can be "perceived, reproduced, or otherwise communicated, the MAI Systems court rendered the expression "for a period of more than transitory duration" moot. The MAI Systems court's interpretation of section 101 neither employed nor established any workable guidelines for ascertaining how permanent a copy must be to meet the fixation requirement of the section. Because the program remained in RAM long enough for Peak operators to diagnose the problem with the software, the court concluded that something more than a

Specifically, no court had passed directly upon the question of whether a user licensed directly by the copyright owner is considered an "owner of a copy" within the meaning of section 117,' although the distinction between owners and licensees had been collapsed in at least one