Class 15: The Reproduction Right

Introduction

In Class 12, we learned how to identify the owner or owners of the copyright in an original work. In Class 13, we learned how to determine the duration of the copyright term. And in Class 14, we learned about the renewal of copyright in works created before the 1976 Act took effect, the termination of transfer provisions introduced in the 1976 Act, and the restoration of copyright in public domain works.

In this class, we will identify the six exclusive rights granted to copyright owners. We will learn about transfers of copyright interests and the doctrine of divisibility, which provides that the exclusive rights of a copyright owner can be transferred individually. We also discuss the assignment and licensing of the exclusive rights of a copyright owner. And we will discuss the scope of the reproduction right.

The Exclusive Rights of Copyright Owners

Section 106 of the Copyright Act grants copyright owners six exclusive rights, subject to certain limitations. It provides:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: 

(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

17 U.S.C. § 106.

In other words, the Copyright Act grants copyright owners some or all of the following exclusive rights, depending on the category of their original work of authorship:

1. Reproduction
2. Adaptation
3. Distribution
4. Performance
5. Display
6. Digital Performance

These exclusive rights enable copyright owners to prevent others from using the original elements of their copyrighted works in certain ways without permission. The exclusive rights granted to a copyright owner depend on the category of the copyrighted work. For example, the copyright owner of a literary work is granted a performance right, but the copyright owner of a pictorial work is not.

A copyright owner may require compensation in exchange for permission to use the original elements of the copyrighted work in certain ways, and is entitled to prohibit certain uses of the works. A copyright owner may file an infringement action against an unauthorized user of the work, and may demand actual or statutory damages, or an injunction.

The exclusive rights of copyright owners are limited by Sections 107-22 of the Copyright Act, which establish exceptions to those exclusive rights. The most important of those exceptions is probably the fair use exception, which was developed by the courts and eventually codified in 17 U.S.C. § 107.

The Doctrine of Divisibility

A copyright consists of a set of exclusive rights belonging to the copyright owner, each of which can be transferred individually, in whole or in part. As Section 201 of the Copyright Act provides:

(d) Transfer of Ownership.— 

(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. 

(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.

17 U.S.C. § 201(d).

Under the doctrine of divisibility, the exclusive rights of a copyright owner may be subdivided in any way, and each of those subdivided rights may be owned and enforced independently. However, the transfer of an exclusive right of a copyright owner is effective only if it is memorialized in a signed writing. As Section 204 of the Copyright Act provides:

A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.

17 U.S.C. § 204(a).

Under the 1976 Act, copyright transferees have independent standing to enforce the rights they own. In other words, if the author of an original work of authorship transfers the reproduction right in that work to a publisher, the publisher has independent standing to file an infringement action.

By contrast, under the 1909 Act, copyright transferees were not copyright owners. As a consequence, even an exclusive licensee had to add the copyright owner in order to file an infringement action.

Compulsory Licenses

Normally, a person who wants to use an original element of a copyrighted work must obtain the permission of the copyright owner. Permission generally takes the form of a copyright license agreement, the terms of which are negotiated between the licensor and the licensee. For example, a copyright license agreement will generally state the scope and duration of the permitted use, as well as whether it is exclusive or non-exclusive.

However, the Copyright Act provides for eight forms of compulsory licenses, or circumstances in which a person may obtain the right to use an original element of a copyrighted work without the consent of the copyright owner, by complying with certain statutory requirements and paying a statutory royalty fee. The eight compulsory licenses are:

1. The Cable License, which creates a compulsory license for secondary transmission by cable television stations. 17 U.S.C. § 111.
2. The Ephemeral Recordings License, which creates a compulsory license to create ephemeral recordings necessary for digital transmission. 17 U.S.C. § 114.
3. The Mechanical License and Digital Audio Transmission License, which creates a compulsory license to produce and distribute phonorecords of non-dramatic musical works and distribute them digitally. 17 U.S.C. § 115.
4. The Digital Performance Right in Sound Recordings, which creates a compulsory license for operators of non-interactive digital transmission services. 17 U.S.C. § 114.
5. The Public Broadcasting License, which creates a compulsory license for the use of certain copyrighted works by non-commercial broadcasters. 17 U.S.C. § 118.
6. The General Satellite Retransmission License, which creates a compulsory license for satellite retransmissions to the public for private viewing. 17 U.S.C. § 119.
7. The Local-to-Local Satellite Retransmission License, which creates a compulsory license for satellite retransmissions of local television into local markets. 17 U.S.C. § 122.
8. The Audio Home Recording Act, which creates a compulsory license to create digital audio recording equipment.

The statutory royalty fees for the compulsory licenses are determined by three Copyright Royalty Judges ("CRJs"), who are appointed by the Librarian of Congress for six-year terms, and collectively known as the Copyright Royalty Board ("CRB"). The CRB replaces the Copyright Royalty Arbitration Panels, which replaced the Copyright Royalty Tribunal.

Questions:

1. Why did Congress create compulsory licenses?
2. Are compulsory licenses justified?
3. When is a compulsory license justified?
4. Why aren't all licenses compulsory?

The Reproduction Right

The reproduction right is the most fundamental right of a copyright owner. It gives copyright owners to exclusive right "to reproduce the copyrighted work in copies or phonorecords." 17 U.S.C. § 106(1). Section 101 of the Copyright Act provides:

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

and

“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

17 U.S.C. § 101.

Essentially, the reproduction right gives copyright owners the exclusive right to create copies of their works that are fixed a tangible medium.

The reproduction right is infringed whenever an original element of a copyrighted work is reproduced in a tangible medium. However, copyright owners often ignore infringements of the reproduction right, unless they are accompanied by infringements of the distribution right. Most copyright owners are focused on the economic value of their copyright, and ignore infringements that do not affect that economic value.

Questions:

1. Why does the reproduction right distinguish between copies and phonorecords?
2. Jane Doe makes a mixtape of her favorite songs for her friend John Doe. Has she violated the reproduction right?
3. Outsider artist Henry Darger created thousands of watercolor paintings based on advertising images. Did he infringe the reproduction right of the creators of the advertisements?

Henry Darger, Vivian Girl Princesses Are Forced to Witness

Frightful Murder Massacre of Children

MAI Systems Corp. v. Peak Computer Inc., 991 F.2d 511 (9th Cir. 1993)

BRUNETTI, Circuit Judge:
Peak Computer, Inc. and two of its employees appeal the district court's order issuing a preliminary injunction pending trial as well as the district court's order issuing a permanent injunction following the grant of partial summary judgment. 

I. FACTS 

MAI Systems Corp., until recently, manufactured computers and designed software to run those computers. The company continues to service its computers and the software necessary to operate the computers. MAI software includes operating system software, which is necessary to run any other program on the computer. 

Peak Computer, Inc. is a company organized in 1990 that maintains computer systems for its clients. Peak maintains MAI computers for more than one hundred clients in Southern California. This accounts for between fifty and seventy percent of Peak's business. 

Peak's service of MAI computers includes routine maintenance and emergency repairs. Malfunctions often are related to the failure of circuit boards inside the computers, and it may be necessary for a Peak technician to operate the computer and its operating system software in order to service the machine. 

In August, 1991, Eric Francis left his job as customer service manager at MAI and joined Peak. Three other MAI employees joined Peak a short time later. Some businesses that had been using MAI to service their computers switched to Peak after learning of Francis's move. 

II. PROCEDURAL HISTORY 

On March 17, 1992, MAI filed suit in the district court against Peak, Peak's president Vincent Chiechi, and Francis. The complaint includes counts alleging copyright infringement, misappropriation of trade secrets, trademark infringement, false advertising, and unfair competition. 

MAI asked the district court for a temporary restraining order and preliminary injunction pending the outcome of the suit. The district court issued a temporary restraining order on March 18, 1992 and converted it to a preliminary injunction on March 26, 1992. On April 15, 1992, the district court issued a written version of the preliminary injunction along with findings of fact and conclusions of law. 

. . . 

In January, 1993, we denied a motion by Peak to stay the district court proceedings. The district court then heard a motion for partial summary judgment on some of the same issues raised in the preliminary injunction. The district court granted partial summary judgment for MAI and entered a permanent injunction on the issues of copyright infringement and misappropriation of trade secrets on February 2, 1993. 

. . . 

We then stayed the permanent injunction in part by an order on February 4, 1993.

. . . 

Since the permanent injunction covers some of the same issues appealed in the preliminary injunction, the appeal of those issues in the context of the preliminary injunction has become moot. See Burbank-Glendale-Pasadena Airport Authority v. Los Angeles, 979 F.2d 1338, 1340 n. 1 (9th Cir. 1992). Therefore, we grant MAI's motion to dismiss the appeal of the preliminary injunction relative to the issues of copyright infringement and trade secret misappropriation. Since other issues covered in the preliminary injunction are not covered in the permanent injunction, the appeals have been consolidated and both the permanent injunction and parts of the preliminary injunction are reviewed here. 

. . .

IV. COPYRIGHT INFRINGEMENT 

The district court granted summary judgment in favor of MAI on its claims of copyright infringement and issued a permanent injunction against Peak on these claims. The alleged copyright violations include: (1) Peak's running of MAI software licensed to Peak customers; (2) Peak's use of unlicensed software at its headquarters; and, (3) Peak's loaning of MAI computers and software to its customers. Each of these alleged violations must be considered separately. 

A. Peak's running of MAI software licensed to Peak customers 

To prevail on a claim of copyright infringement, a plaintiff must prove ownership of a copyright and a "`copying' of protectable expression" beyond the scope of a license. S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085 (9th Cir. 1989). 

MAI software licenses allow MAI customers to use the software for their own internal information processing. This allowed use necessarily includes the loading of the software into the computer's random access memory ("RAM") by a MAI customer. However, MAI software licenses do not allow for the use or copying of MAI software by third parties such as Peak. Therefore, any "copying" done by Peak is "beyond the scope" of the license. 

It is not disputed that MAI owns the copyright to the software at issue here, however, Peak vigorously disputes the district court's conclusion that a "copying" occurred under the Copyright Act. 

The Copyright Act defines "copies" as: material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 

17 U.S.C. § 101. 

The Copyright Act then explains: 

A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, 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. § 101. 

The district court's grant of summary judgment on MAI's claims of copyright infringement reflects its conclusion that a "copying" for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer's RAM. This conclusion is consistent with its finding, in granting the preliminary injunction, that: "the loading of copyrighted computer software from a storage medium (hard disk, floppy disk, or read only memory) into the memory of a central processing unit ("CPU") causes a copy to be made. In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement." We find that this conclusion is supported by the record and by the law. 

Peak concedes that in maintaining its customer's computers, it uses MAI operating software "to the extent that the repair and maintenance process necessarily involves turning on the computer to make sure it is functional and thereby running the operating system." It is also uncontroverted that when the computer is turned on the operating system is loaded into the computer's RAM. As part of diagnosing a computer problem at the customer site, the Peak technician runs the computer's operating system software, allowing the technician to view the systems error log, which is part of the operating system, thereby enabling the technician to diagnose the problem. 

Peak argues that this loading of copyrighted software does not constitute a copyright violation because the "copy" created in RAM is not "fixed." However, by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer. MAI has adequately shown that the representation created in the RAM is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." 

After reviewing the record, we find no specific facts (and Peak points to none) which indicate that the copy created in the RAM is not fixed. While Peak argues this issue in its pleadings, mere argument does not establish a genuine issue of material fact to defeat summary judgment. A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials in pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Proc. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Harper v. Wallingford, 877 F.2d 728 (9th Cir. 1989). 

The law also supports the conclusion that Peak's loading of copyrighted software into RAM creates a "copy" of that software in violation of the Copyright Act. In Apple Computer, Inc. v. Formula Int'l, Inc., 594 F. Supp. 617, 621 (C.D.Cal. 1984), the district court held that the copying of copyrighted software onto silicon chips and subsequent sale of those chips is not protected by § 117 of the Copyright Act. Section 117 allows "the 'owner' of a copy of a computer program to make or authorize the making of another copy" without infringing copyright law, if it "is an essential step in the utilization of the computer program" or if the new copy is "for archival purposes only." 17 U.S.C. § 117 (Supp. 1988). One of the grounds for finding that § 117 did not apply was the court's conclusion that the permanent copying of the software onto the silicon chips was not an "essential step" in the utilization of the software because the software could be used through RAM without making a permanent copy. The court stated: 

RAM can be simply defined as a computer component in which data and computer programs can be temporarily recorded. Thus, the purchaser of [software] desiring to utilize all of the programs on the diskette could arrange to copy [the software] into RAM. This would only be a temporary fixation. It is a property of RAM that when the computer is turned off, the copy of the program recorded in RAM is lost. 

Apple Computer at 622. 

While we recognize that this language is not dispositive, it supports the view that the copy made in RAM is "fixed" and qualifies as a copy under the Copyright Act. 

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. See e.g. Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 260 (5th Cir. 1988) ("the act of loading a program from a medium of storage into a computer's memory creates a copy of the program"); 2 Nimmer on Copyright, § 8.08 at 8-105 (1983) ("Inputting a computer program entails the preparation of a copy."); Final Report of the National Commission on the New Technological Uses of Copyrighted Works, at 13 (1978) ("the placement of a work into a computer is the preparation of a copy"). 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. 17 U.S.C. § 101. We affirm the district court's grant of summary judgment as well as the permanent injunction as it relates to this issue. 

B. Use of unlicensed software at headquarters 

It is not disputed that Peak has several MAI computers with MAI operating software "up and running" at its headquarters. It is also not disputed that Peak only has a license to use MAI software to operate one system. As discussed above, we find that the loading of MAI's operating software into RAM, which occurs when an MAI system is turned on, constitutes a copyright violation. We affirm the district court's grant of summary judgment in favor of MAI on its claim that Peak violated its copyright through the unlicensed use of MAI software at Peak headquarters, and also affirm the permanent injunction as it relates to this issue. 

C. Loaning of MAI computers and software 

MAI contends that Peak violated the Copyright Act by loaning MAI computers and software to its customers. Among the exclusive rights given to the owner of a copyrighted work is the right to distribute copies of the work by lending. 17 U.S.C. § 106(3). Therefore, Peak's loaning of MAI software, if established, would constitute a violation of the Copyright Act. 

MAI argues that it is clear that Peak loaned out MAI computers because Peak advertisements describe the availability of loaner computers for its customers and Chiechi admitted that the available loaners included MAI computers. However, there was no evidence that a MAI computer was ever actually loaned to a Peak customer. Paul Boulanger, a Senior Field Engineer at Peak, testified in his deposition that he was not aware of any MAI systems being loaned to Peak customers or of any customer asking for one. Charles Weiner, a Field Service Manager at Peak, testified in his deposition that he did not have any knowledge of MAI systems being loaned to customers. Weighing this evidence in the light most favorable to Peak, whether Peak actually loaned out any MAI system remains a genuine issue of material fact. 

As a general rule, a permanent injunction will be granted when liability has been established and there is a threat of continuing violations. See, National Football League v. McBee & Bruno's, Inc., 792 F.2d 726, 732 (8th Cir. 1986); 3 Nimmer on Copyright § 14.06[B] at 14-88. However § 502(a) of the Copyright Act authorizes the court to "grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." 17 U.S.C. § 502(a) (emphasis added). While there has been no showing that Peak has actually loaned out any MAI software, the threat of a violation is clear as Peak has MAI computers in its loaner inventory. The permanent injunction is upheld as it relates to this issue.

. . . 

VIII. CONCLUSION 

. . . 

The district court's grant of summary judgment is AFFIRMED in part and REVERSED in part. This case is REMANDED for proceedings consistent with this opinion.

Questions:

1. The MAI court held that loading a program into the RAM of a computer is a fixation that violates the reproduction right, even if the program is deleted when the computer is turned off. Do you agree? How long does a fixation need to last in order to violate the reproduction right?
2. In 1998, the Digital Millennium Copyright Act amended Section 117 of the Copyright Act to provide that temporary reproduction of a computer program in order to maintain or repair a computer system does not violate the reproduction right. 17 U.S.C. § 117. Was that a good idea? Should the exemption extend beyond computer maintenance and repair?

M.A.I. S10 Basic Four Computer

Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008)

JOHN M. WALKER, JR., Circuit Judge: 

Defendant–Appellant Cablevision Systems Corporation (“Cablevision”) wants to market a new “Remote Storage” Digital Video Recorder system (“RS–DVR”), using a technology akin to both traditional, set-top digital video recorders, like TiVo (“DVRs”), and the video-on-demand (“VOD”) services provided by many cable companies. Plaintiffs–Appellees produce copyrighted movies and television programs that they provide to Cablevision pursuant to numerous licensing agreements. They contend that Cablevision, through the operation of its RS–DVR system as proposed, would directly infringe their copyrights both by making unauthorized reproductions, and by engaging in public performances, of their copyrighted works. The material facts are not in dispute. Because we conclude that Cablevision would not directly infringe plaintiffs' rights under the Copyright Act by offering its RS–DVR system to consumers, we reverse the district court's award of summary judgment to plaintiffs, and we vacate its injunction against Cablevision. 

BACKGROUND 

Today's television viewers increasingly use digital video recorders (“DVRs”) instead of video cassette recorders (“VCRs”) to record television programs and play them back later at their convenience. DVRs generally store recorded programming on an internal hard drive rather than a cassette. But, as this case demonstrates, the generic term “DVR” actually refers to a growing number of different devices and systems. Companies like TiVo sell a stand-alone DVR device that is typically connected to a user's cable box and television much like a VCR. Many cable companies also lease to their subscribers “set-top storage DVRs,” which combine many of the functions of a standard cable box and a stand-alone DVR in a single device. 

In March 2006, Cablevision, an operator of cable television systems, announced the advent of its new “Remote Storage DVR System.” As designed, the RS–DVR allows Cablevision customers who do not have a stand-alone DVR to record cable programming on central hard drives housed and maintained by Cablevision at a “remote” location. RS–DVR customers may then receive playback of those programs through their home television sets, using only a remote control and a standard cable box equipped with the RS–DVR software. Cablevision notified its content providers, including plaintiffs, of its plans to offer RS–DVR, but it did not seek any license from them to operate or sell the RS–DVR. 

Plaintiffs, which hold the copyrights to numerous movies and television programs, sued Cablevision for declaratory and injunctive relief. They alleged that Cablevision's proposed operation of the RS–DVR would directly infringe their exclusive rights to both reproduce and publicly perform their copyrighted works. Critically for our analysis here, plaintiffs alleged theories only of direct infringement, not contributory infringement, and defendants waived any defense based on fair use. 

Ultimately, the United States District Court for the Southern District of New York (Denny Chin, Judge), awarded summary judgment to the plaintiffs and enjoined Cablevision from operating the RS–DVR system without licenses from its content providers. See Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp. (Cablevision I), 478 F.Supp.2d 607 (S.D.N.Y.2007). At the outset, we think it helpful to an understanding of our decision to describe, in greater detail, both the RS–DVR and the district court's opinion. 

I. Operation of the RS–DVR System 

Cable companies like Cablevision aggregate television programming from a wide variety of “content providers”—the various broadcast and cable channels that produce or provide individual programs—and transmit those programs into the homes of their subscribers via coaxial cable. At the outset of the transmission process, Cablevision gathers the content of the various television channels into a single stream of data. Generally, this stream is processed and transmitted to Cablevision's customers in real time. Thus, if a Cartoon Network program is scheduled to air Monday night at 8pm, Cartoon Network transmits that program's data to Cablevision and other cable companies nationwide at that time, and the cable companies immediately re-transmit the data to customers who subscribe to that channel. 

Under the new RS–DVR, this single stream of data is split into two streams. The first is routed immediately to customers as before. The second stream flows into a device called the Broadband Media Router (“BMR”), id. at 613, which buffers the data stream, reformats it, and sends it to the “Arroyo Server,” which consists, in relevant part, of two data buffers and a number of high-capacity hard disks. The entire stream of data moves to the first buffer (the “primary ingest buffer”), at which point the server automatically inquires as to whether any customers want to record any of that programming. If a customer has requested a particular program, the data for that program move from the primary buffer into a secondary buffer, and then onto a portion of one of the hard disks allocated to that customer. As new data flow into the primary buffer, they overwrite a corresponding quantity of data already on the buffer. The primary ingest buffer holds no more than 0.1 seconds of each channel's programming at any moment. Thus, every tenth of a second, the data residing on this buffer are automatically erased and replaced. The data buffer in the BMR holds no more than 1.2 seconds of programming at any time. While buffering occurs at other points in the operation of the RS–DVR, only the BMR buffer and the primary ingest buffer are utilized absent any request from an individual subscriber. 

As the district court observed, “the RS–DVR is not a single piece of equipment,” but rather “a complex system requiring numerous computers, processes, networks of cables, and facilities staffed by personnel twenty-four hours a day and seven days a week.” Id. at 612. To the customer, however, the processes of recording and playback on the RS–DVR are similar to that of a standard set-top DVR. Using a remote control, the customer can record programming by selecting a program in advance from an on-screen guide, or by pressing the record button while viewing a given program. A customer cannot, however, record the earlier portion of a program once it has begun. To begin playback, the customer selects the show from an on-screen list of previously recorded programs. See id. at 614–16. The principal difference in operation is that, instead of sending signals from the remote to an on-set box, the viewer sends signals from the remote, through the cable, to the Arroyo Server at Cablevision's central facility. See id. In this respect, RS–DVR more closely resembles a VOD service, whereby a cable subscriber uses his remote and cable box to request transmission of content, such as a movie, stored on computers at the cable company's facility. Id. at 612. But unlike a VOD service, RS–DVR users can only play content that they previously requested to be recorded.
Cablevision has some control over the content available for recording: a customer can only record programs on the channels offered by Cablevision (assuming he subscribes to them). Cablevision can also modify the system to limit the number of channels available and considered doing so during development of the RS–DVR. Id. at 613. 

II. The District Court's Decision 

In the district court, plaintiffs successfully argued that Cablevision's proposed system would directly infringe their copyrights in three ways. First, by briefly storing data in the primary ingest buffer and other data buffers integral to the function of the RS–DVR, Cablevision would make copies of protected works and thereby directly infringe plaintiffs' exclusive right of reproduction under the Copyright Act. Second, by copying programs onto the Arroyo Server hard disks (the “playback copies”), Cablevision would again directly infringe the reproduction right. And third, by transmitting the data from the Arroyo Server hard disks to its RS–DVR customers in response to a “playback” request, Cablevision would directly infringe plaintiffs' exclusive right of public performance. See id. at 617. Agreeing with all three arguments, the district court awarded summary declaratory judgment to plaintiffs and enjoined Cablevision from operating the RS–DVR system without obtaining licenses from the plaintiff copyright holders. 

As to the buffer data, the district court rejected defendants' arguments 1) that the data were not “fixed” and therefore were not “copies” as defined in the Copyright Act, and 2) that any buffer copying was de minimis because the buffers stored only small amounts of data for very short periods of time. In rejecting the latter argument, the district court noted that the “aggregate effect of the buffering” was to reproduce the entirety of Cablevision's programming, and such copying “can hardly be called de minimis.” Id. at 621. 

On the issue of whether creation of the playback copies made Cablevision liable for direct infringement, the parties and the district court agreed that the dispositive question was “who makes the copies”? Id. at 617. Emphasizing Cablevision's “unfettered discretion” over the content available for recording, its ownership and maintenance of the RS–DVR components, and its “continuing relationship” with its RS–DVR customers, the district court concluded that “the copying of programming to the RS–DVR's Arroyo servers ... would be done not by the customer but by Cablevision, albeit at the customer's request.” Id. at 618, 620, 621. 

Finally, as to the public performance right, Cablevision conceded that, during the playback, “the streaming of recorded programming in response to a customer's request is a performance.” Id. at 622. Cablevision contended, however, that the work was performed not by Cablevision, but by the customer, an argument the district court rejected “for the same reasons that [it] reject[ed] the argument that the customer is ‘doing’ the copying involved in the RS–DVR.” Id. Cablevision also argued that such a playback transmission was not “to the public,” and therefore not a public performance as defined in the Copyright Act, because it “emanates from a distinct copy of a program uniquely associated with one customer's set-top box and intended for that customer's exclusive viewing in his or her home.” Id. The district court disagreed, noting that “Cablevision would transmit the same program to members of the public, who may receive the performance at different times, depending on whether they view the program in real time or at a later time as an RS–DVR playback.” Id. at 623 (emphasis added). The district court also relied on a case from the Northern District of California, On Command Video Corp. v. Columbia Pictures Industries, 777 F.Supp. 787 (N.D.Cal.1991), which held that when the relationship between the transmitter and the audience of a performance is commercial, the transmission is “to the public,” see Cablevision I, 478 F.Supp.2d at 623 (citing On Command, 777 F.Supp. at 790). 

Finding that the operation of the RS–DVR would infringe plaintiffs' copyrights, the district court awarded summary judgment to plaintiffs and enjoined Cablevision from copying or publicly performing plaintiffs' copyrighted works “in connection with its proposed RS–DVR system,” unless it obtained the necessary licenses. Cablevision I, 478 F.Supp.2d at 624. Cablevision appealed. 

DISCUSSION 

We review a district court's grant of summary judgment de novo. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 607 (2d Cir.2006). 

“Section 106 of the Copyright Act grants copyright holders a bundle of exclusive rights....” Id. at 607–08. This case implicates two of those rights: the right “to reproduce the copyrighted work in copies,” and the right “to perform the copyrighted work publicly.” 17 U.S.C. § 106(1), (4). As discussed above, the district court found that Cablevision infringed the first right by 1) buffering the data from its programming stream and 2) copying content onto the Arroyo Server hard disks to enable playback of a program requested by an RS–DVR customer. In addition, the district court found that Cablevision would infringe the public performance right by transmitting a program to an RS–DVR customer in response to that customer's playback request. We address each of these three allegedly infringing acts in turn. 

I. The Buffer Data 

It is undisputed that Cablevision, not any customer or other entity, takes the content from one stream of programming, after the split, and stores it, one small piece at a time, in the BMR buffer and the primary ingest buffer. As a result, the information is buffered before any customer requests a recording, and would be buffered even if no such request were made. The question is whether, by buffering the data that make up a given work, Cablevision “reproduce[s]” that work “in copies,” 17 U.S.C. § 106(1), and thereby infringes the copyright holder's reproduction right. 

“Copies,” as defined in the Copyright Act, “are material objects ... in which a work is fixed by any method ... and from which the work can be ... reproduced.” Id. § 101. The Act also provides that a work is “ ‘fixed’ in a tangible medium of expression when its embodiment ... is sufficiently permanent or stable to permit it to be ... reproduced ... for a period of more than transitory duration.” Id. (emphasis added). We believe that this language plainly imposes two distinct but related requirements: the work must be embodied in a medium, i.e., placed in a medium such that it can be perceived, reproduced, etc., from that medium (the “embodiment requirement”), and it must remain thus embodied “for a period of more than transitory duration” (the “duration requirement”). See 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8.02[B][3], at 8–32 (2007). Unless both requirements are met, the work is not “fixed” in the buffer, and, as a result, the buffer data is not a “copy” of the original work whose data is buffered. 

The district court mistakenly limited its analysis primarily to the embodiment requirement. As a result of this error, once it determined that the buffer data was “[c]learly ... capable of being reproduced,” i.e., that the work was embodied in the buffer, the district court concluded that the work was therefore “fixed” in the buffer, and that a copy had thus been made. Cablevision I, 478 F.Supp.2d at 621–22. In doing so, it relied on a line of cases beginning with MAI Systems Corp. v. Peak Computer Inc., 991 F.2d 511 (9th Cir.1993). It also relied on the United States Copyright Office's 2001 report on the Digital Millennium Copyright Act, which states, in essence, that an embodiment is fixed “[u]nless a reproduction manifests itself so fleetingly that it cannot be copied.” U.S. Copyright Office, DMCA Section 104 Report 111 (Aug.2001) (“DMCA Report ”) (emphasis added), available at http://www. copyright.gov/reports/studies/dmca/sec–104–report–vol–1.pdf. 

The district court's reliance on cases like MAI Systems is misplaced. In general, those cases conclude that an alleged copy is fixed without addressing the duration requirement; it does not follow, however, that those cases assume, much less establish, that such a requirement does not exist. Indeed, the duration requirement, by itself, was not at issue in MAI Systems and its progeny. As a result, they do not speak to the issues squarely before us here: If a work is only “embodied” in a medium for a period of transitory duration, can it be “fixed” in that medium, and thus a copy? And what constitutes a period “of more than transitory duration”? 

In MAI Systems, defendant Peak Computer, Inc., performed maintenance and repairs on computers made and sold by MAI Systems. In order to service a customer's computer, a Peak employee had to operate the computer and run the computer's copyrighted operating system software. See MAI Sys., 991 F.2d at 513. The issue in MAI Systems was whether, by loading the software into the computer's RAM, the repairman created a “copy” as defined in § 101. See id. at 517. The resolution of this issue turned on whether the software's embodiment in the computer's RAM was “fixed,” within the meaning of the same section. The Ninth Circuit concluded that 

by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer, MAI has adequately shown that the representation created in the RAM is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” 

Id. at 518 (quoting 17 U.S.C. § 101). 

The MAI Systems court referenced the “transitory duration” language but did not discuss or analyze it. The opinion notes that the defendants “vigorously” argued that the program's embodiment in the RAM was not a copy, but it does not specify the arguments defendants made. Id. at 517. This omission suggests that the parties did not litigate the significance of the “transitory duration” language, and the court therefore had no occasion to address it. This is unsurprising, because it seems fair to assume that in these cases the program was embodied in the RAM for at least several minutes. 

Accordingly, we construe MAI Systems and its progeny as holding that loading a program into a computer's RAM can result in copying that program. We do not read MAI Systems as holding that, as a matter of law, loading a program into a form of RAM always results in copying. Such a holding would read the “transitory duration” language out of the definition, and we do not believe our sister circuit would dismiss this statutory language without even discussing it. It appears the parties in MAI Systems simply did not dispute that the duration requirement was satisfied; this line of cases simply concludes that when a program is loaded into RAM, the embodiment requirement is satisfied—an important holding in itself, and one we see no reason to quibble with here. 

At least one court, relying on MAI Systems in a highly similar factual setting, has made this point explicitly. In Advanced Computer Services of Michigan, Inc. v. MAI Systems Corp., the district court expressly noted that the unlicensed user in that case ran copyrighted diagnostic software “for minutes or longer,” but that the program's embodiment in the computer's RAM might be too ephemeral to be fixed if the computer had been shut down “within seconds or fractions of a second” after loading the copyrighted program. 845 F.Supp. 356, 363 (E.D.Va.1994). We have no quarrel with this reasoning; it merely makes explicit the reasoning that is implicit in the other MAI Systems cases. Accordingly, those cases provide no support for the conclusion that the definition of “fixed” does not include a duration requirement. See Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1924) (“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”). 

Nor does the Copyright Office's 2001 DMCA Report, also relied on by the district court in this case, explicitly suggest that the definition of “fixed” does not contain a duration requirement. However, as noted above, it does suggest that an embodiment is fixed “[u]nless a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicated.” DMCA Report, supra, at 111. As we have stated, to determine whether a work is “fixed” in a given medium, the statutory language directs us to ask not only 1) whether a work is “embodied” in that medium, but also 2) whether it is embodied in the medium “for a period of more than transitory duration.” According to the Copyright Office, if the work is capable of being copied from that medium for any amount of time, the answer to both questions is “yes.” The problem with this interpretation is that it reads the “transitory duration” language out of the statute.
We assume, as the parties do, that the Copyright Office's pronouncement deserves only Skidmore deference, deference based on its “power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). And because the Office's interpretation does not explain why Congress would include language in a definition if it intended courts to ignore that language, we are not persuaded. 

In sum, no case law or other authority dissuades us from concluding that the definition of “fixed” imposes both an embodiment requirement and a duration requirement. Accord CoStar Group Inc. v. LoopNet, Inc., 373 F.3d 544, 551 (4th Cir.2004) (while temporary reproductions “may be made in this transmission process, they would appear not to be ‘fixed’ in the sense that they are ‘of more than transitory duration’”). We now turn to whether, in this case, those requirements are met by the buffer data. 

Cablevision does not seriously dispute that copyrighted works are “embodied” in the buffer. Data in the BMR buffer can be reformatted and transmitted to the other components of the RS–DVR system. Data in the primary ingest buffer can be copied onto the Arroyo hard disks if a user has requested a recording of that data. Thus, a work's “embodiment” in either buffer “is sufficiently permanent or stable to permit it to be perceived, reproduced,” (as in the case of the ingest buffer) “or otherwise communicated” (as in the BMR buffer). 17 U.S.C. § 101. The result might be different if only a single second of a much longer work was placed in the buffer in isolation. In such a situation, it might be reasonable to conclude that only a minuscule portion of a work, rather than “a work” was embodied in the buffer. Here, however, where every second of an entire work is placed, one second at a time, in the buffer, we conclude that the work is embodied in the buffer. 

Does any such embodiment last “for a period of more than transitory duration”? Id. No bit of data remains in any buffer for more than a fleeting 1.2 seconds. And unlike the data in cases like MAI Systems, which remained embodied in the computer's RAM memory until the user turned the computer off, each bit of data here is rapidly and automatically overwritten as soon as it is processed. While our inquiry is necessarily fact-specific, and other factors not present here may alter the duration analysis significantly, these facts strongly suggest that the works in this case are embodied in the buffer for only a “transitory” period, thus failing the duration requirement. 

Against this evidence, plaintiffs argue only that the duration is not transitory because the data persist “long enough for Cablevision to make reproductions from them.” Br. of Pls.-Appellees the Cartoon Network et al. at 51. As we have explained above, however, this reasoning impermissibly reads the duration language out of the statute, and we reject it. Given that the data reside in no buffer for more than 1.2 seconds before being automatically overwritten, and in the absence of compelling arguments to the contrary, we believe that the copyrighted works here are not “embodied” in the buffers for a period of more than transitory duration, and are therefore not “fixed” in the buffers. Accordingly, the acts of buffering in the operation of the RS–DVR do not create copies, as the Copyright Act defines that term. Our resolution of this issue renders it unnecessary for us to determine whether any copies produced by buffering data would be de minimis, and we express no opinion on that question. 

. . . 

CONCLUSION 

For the foregoing reasons, the district court's award of summary judgment to the plaintiffs is REVERSED and the district court's injunction against Cablevision is VACATED. The case is REMANDED for further proceedings consistent with this opinion.

Questions:

1. What does fixation require? When should fixation infringe the reproduction right?
2. Why did MAI and Cablevision create copies of protected work? Did their use benefit the public?