When You Need Someone’s Permission to Use the Thing You Bought

How Long Is a “Transitory Duration”?

Normally, you don’t need anyone’s permission to use a copyrighted work. If you buy a book, you may read it. If you are given a painting, you may enjoy it. If you take a knick-knack from your grandma, you may display it with pride.¹It’s actually more complicated than this! Since there’s an exclusive right to public display, you actually need to rely on a version of the first-sale doctrine to display copyrighted works in public. This isn’t a big deal, assuming you work was made “legally”…

Computer software and many forms of digital content are exceptions. You need the copyright owner’s permission to use software and other digital content in their normal, intended ways. This is because software and other digital content is ordinarily stored in a way that the computer can’t readily digest. It’s a little like a mother bird chewing up a worm then regurgitating it so the chicks can eat it. Ok, that was gross. It’s also like cutting up a hot dog so your 2-year-old can safely eat it.

The Child’s Hot Dog Theory of Software

The computer file—containing the program or content—must be copied from where it’s stored into the computer’s memory. This memory is just a temporary way station for the computer’s processor.²There are memory chips with permanent information, but we’re assuming that the software or content you want to use is going into random-access memory. It’s as though you cut your child’s hot dog one piece at a time on your grown-up plate, then after you cut a piece, transferred it to a special small plate for your child. Upon consumption, you cut another piece, transfer it, and so on.

Nice analogy, except one thing. As you cut the hot dog, it doesn’t get any shorter. You aren’t so much cutting pieces off the hot dog but making copies of each piece you’re cutting and transferring. Thus, when you’re done feeding your child the hot dog, bit by bit, you still have an entire hot dog on your plate. Weird, right?

But the key here is you’ve made a copy, bit by bit, of the hot dog. And to make a copy of something protected by copyright requires the permission of the copyright owner.³Unless you have some legal excuse or defense, such as, fair use. But let’s just not right now, ok?

CONTU You

That might strike you as… not right. It’s not the same thing as, say, photocopying a magazine article, or even sending a copy of a word-processing file—a draft brief to a client, say—things that exist for an appreciable and useful (from a human point of view) amount of time. It’s on the child’s plate for but a moment before it’s scarfed. This intermediate copy is less a useful object than an accident of the way computers work.

Congress had the same concern way back in 1976, when the current Copyright Act was enacted. Should computer programs be protected by copyright at all? As source code (the code written by programmers), they were essentially literary works. Very boring, very functional literary works, but one versed in the programming language could “read” and understand the writing. Once converted (“compiled”) into a version computers can understand, they weren’t very easily understood by humans, but they were certainly a perfect analogue⁴Ha, ha. to the human-understandable version.

Congress formed a commission, called CONTUE, to spend an extra two years study the problem. After CONTU’s report, Congress decided that, yes, computer programs could be protected as literary works. It added a few new provisions to the Copyright Act specific to computer programs and mostly left it to the courts to sort out the rest.⁵However, it’s quite possible that computer programs were protectable all along, for the reasons just given, and all Congress did was make that explicit and provide a (somewhat watered down) defense that was supposed to give you the right to make copies of the program to the extent necessary to use it, but that’s a subject for another day.

A Strange Fixation

That didn’t quite sort out everything about these intermediate copies. That’s because it’s not an infringement unless you make a copy, and it’s not a copy unless it’s “fixed in a tangible medium of expression,” and it’s not “fixed in a tangible medium of expression” unless… Well, here’s what the Copyright Act has to say about that:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy … is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

Well, that’s all sorted, then, eh? It isn’t? Perhaps the passive voice is throwing you a bit. Who, exactly, is to be doing the perceiving, reproducing or communicating? A human? Or would a machine (1978 era, remember) suffice? Oh, and how long is a “transitory duration”?

Mother MAI I?

It took until 1991 for these questions to reach a U.S. Court of Appeals. Here’s how it happened. A company called MAI Systems used to manufacture computers, and it also developed an operating system for those computers. Like most other software developers at the time, MAI Systems made a lot of money by servicing the computers. That’s regular income, which helps smooth out the ups and downs of computer sales. Peak Computer was in the business of servicing computers, and it would service MAI Systems computers along with other makes. MAI Systems tolerated this until a bunch of its employees left to joint Peak, and Peak started really eating into MAI Systems’ servicing business. MAI had had enough and sued… for copyright infringement.

A “terminal” device for a MAI Systems Basic Four system, at issue in the suit against Peak but from the wrong era (this is more like early 1970’s). Credit: By Bilby – Own work, CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=10981092. For more images, see: http://www.ardiehl.de/basicfour/

That might surprise you. You can, after all, bring your car to an independent repair shop, if you want. You don’t have to use a dealer. Why can’t you also just call Peak instead of MAI Systems for your MAI Systems computer? Peak might be cheaper and/or better, especially if much of MAI Systems’ talent went to Peak.

MAI Systems’ legal theory went like this. It licensed its operating system to its customers only. Peak wasn’t a customer, so it wasn’t entitled to “use” the operating system. That made Peak an infringer because it had no choice but to make intermediate copies of the computer programs that constituted the operating system—copying them from storage into memory.

Peak must have thought this bizarre, and with its livelihood threatened, it fought back pretty hard. And lost—at trial and again before the Ninth Circuit Court of Appeals.

There was no question that Peak made copies of the operating system simply by switching the computers on. It argued that a copy in memory isn’t fixed because memory is unstable: once you turn off the computer (or load too much other stuff into the memory), the copy degrades and disappears. But what about that business of “perceived, reproduced, or otherwise communicated”? Well, Peak didn’t really challenge that part.The parties agreed that requirement was met when the Peak technician reviewed the systems error log (which is produced by the operating system). So, checkmate.

A Peak Copyright Decision

MAI Systems v. Peak Computer is low-key one of the most important copyright decisions ever. This isn’t to say that it was insupportable or insane, just important. Consider: MAI Systems got a monopoly over servicing its own computers and customers were stuck with whatever quality and price MAI systems chose to offer, all because of an accident of how computers work. An entire business model was born (or perhaps just confirmed).⁶This business model would fade away as “enterprise solutions” were supplanted by smaller, cheaper, nimbler and more customizable applications and online services—all of which present their own copyright issues…

When mobile digital content came along, MAI Systems was already there for it. If you want to “perceive” the content, you needed to copy it into your device’s memory. That meant you didn’t necessarily own the the content you purchased. You might just be licensing it. In theory, the licensor could, if the license allowed it, limit or take away your right to enjoy “your” content. This is especially jarring with e-readers, because it feels so much like reading a book.

Don’t Blink!

But how far can MAI Systems be pushed? You could almost read “transitory duration” out of the statute by simply arguing that, to a computer, nearly any amount of time (no matter how short) is meaningful and thus not transitory.⁷I mean, “for limited times” has been read out of the U.S. Constitution. This would have profound implications for all manner of computer systems, which perform intermediate, temporary copies all the time in their ordinary course. Computer systems routinely buffer, parse, make little copies here and there, archive, and so forth.⁸There are a number of defenses that would allow several well-understood forms of intermediate copying, such as that performed by internet service providers.

In Cartoon Network v. CSC Holdings⁹CSC Holdings is basically just Cablevision, so everyone calls the case Cablevision., a cable company had developed a way of letting its customers watch scheduled cable shows on demand. The computer system that made this all possible is quite complex, but among other things, it required copying the plaintiffs’ content into two buffers: one to determine whether the program had been requested, and another for preparing the content to be copied onto more permanent storage.¹⁰This more permanent storage was held not to constitute copying by the cable provider because it was performed at the behest of the customer. This remains a controversial holding but is irrelevant to our discussion. The first buffer held content for about .1 of a second, the other 1.2 seconds.

This case ended up before the Second Circuit Court of Appeals (not the one that decided MAI Systems). It held that .1 and 1.2 seconds were of “transitory duration” and were, thus, not “fixed in a tangible medium of expression.” The content providers had argued that MAI Systems stood for the proposition that any duration was long enough, but the court here thought that would read “transitory duration” right out of the statutory definition of “fixed.”

One might have gone a bit further: a human cannot perceive, communicate or reproduce the content from those buffers. Even if you think humans aren’t necessary to meet the statutory requirements of “fixed,” even the machine the cable system was using wasn’t really reproducing the works in those tiny little buffers. It was taking vanishingly small parts of a much larger works at at time, so small that you couldn’t even say it was substantially similar to the work as a whole.¹¹Do not get me started about the de minimis defense.

Raising Arizona

More recently, the same court that decided MAI Systems had an opportunity to address the issue raised in Cartoon Network. Unlike the Cartoon Network court, this court was bound by MAI Systems. That case is CDK Global v. Brnovich.

The way the issue arose is almost bizarre. The case was really about an Arizona state law that addressed a problem I didn’t know was a problem (beyond generalized concerns about privacy). It turns out car dealers tend to use special software suites and proprietary databases managed by third parties. These databases contain a lot of juicy information about the dealers’ customers, like their social security numbers. The law in question empowered dealers to stop sharing their customers’ private data with these third-party providers (something, apparently, dealers were eager to do).

The Arizona law had an additional, pro-dealer provision. It required these third-party providers to let competitors access their data (in a manner that is supposed secure that data). The point of this provision was to reduce the third-party providers’ market power (and market was apparently pretty consolidated). And that point wasn’t lost on the third-party providers. So they sued the State of Arizona to block the law.

According to the third-party providers, to access their databases, you need to use their software. And to do that, you have to make a copy of the software. True, the software is actually remote from the user and resides on the third-party providers’ own servers, and so the nefarious copy would be made on their own servers. Never mind that: the copy is being made at the instigation of someone who lacks a license to make copies.

The third-party providers argued that the Copyright Act “preempted” the Arizona law. I don’t want to get into copyright preemption right now, but the idea is that, some (not all) federal laws, including the Copyright Act, can supersede state laws on the same subject matter. And the Arizona law “interferes” with the providers’ exclusive right to control use of their software.

Pretermitting with Preemption

This is… not a great argument.The Ninth Circuit had about fifteen different ways to flush this argument. Even if you’re not a lawyer, you can probably think of a few. The court was, for example, highly skeptical of the whole idea that mere “interference” can give rise to something as comprehensive as preemption. But the court chose to base its rejection of the preemption argument on… whether that copy of the software was fixed for more than a transitory duration, under MAI Systems.

It is as though the Ninth Circuit was champing at the bit to clarify MAI Systems.

The Ninth Circuit pointed out that the issue of “transitory duration” wasn’t really before the court in MAI Systems. The parties in that case agreed that the fixation there was for longer than a transitory duration because a human being was able to read the error logs generated by the operating system. The plaintiffs apparently argued that, because the copying and fixation was useful, the fixation had to be for more than a transitory duration. But “use” isn’t actually one of the exclusive rights of copyright. Copying (well, reproduction) is, and that right is only violated when the copy is fixed for more than a transitory duration. Thus, usefulness doesn’t answer the question of how long “transitory” is.

It seems to be me quite clear that “transitory duration” means long enough for a human being to understand or enjoy the copy. In a case where the human being doesn’t necessarily understand or enjoy the copy—such as when software is loaded into your computer’s memory—that understanding or enjoyment might be hypothetical: if you could read the error log, then the fixation isn’t transitory.

This might be a big deal for computer systems that make temporary intermediate copies in the ordinary course. But it isn’t going to have much effect on digital content. By the time you enjoy your digital content, the transitory duration will have expired.¹²You can also tie this into internet-connected devices, i.e., “Internet of Things.” If the device requires software to operate, and the software is pushed into your device via the internet, do you own that software? If you don’t, nothing really prevents the manufacturer from bricking your device, charging you a subscription to keep using the thing, or controlling who may repair the thing and how. That’s a whole other blog post, really.

But What About Aereo?

I’d like to tie this whole issue to another issue that’s on my mind. I call it the “looking under the hood” problem. Recall that I talk about computer systems that make all kinds of intermediate copies in the ordinary course. But these copies are made by processes that no one really pays any mind to, except maybe those who maintain the systems. From the user’s point of view, when you read an e-book, you’re just reading a book. You are unaware that your device is making an intermediate copy to do so.

So, when confronted with a complex computer system, do we dissect the system into components to see if copies are being made, or do we treat the system holistically and analogize it to traditional activity (like reading a book)?

The answer to that question was always assumed to be dissection. That is, until a notorious case called American Broadcast Co. v. Aereo. In that case, Aereo thought it could take ordinary over-the-air broadcast signals and transmit them over the internet. It made these banks of tiny little antennae. Each subscriber got their own personal antenna that they controlled. If you’re looking under the hood, tracing the literal wires to the tiny antennae, then this scheme should have been legal.

But the Supreme Court didn’t look under the hood. It looked at Aereo’s system holistically and analogized it to a re-transmitter. It certainly functioned like a re-transmitter, but it was not, strictly speaking, a re-transmitter.

Perhaps the difference is: if you look at an e-book reader holistically, you ignore an instance of copying (albeit incidental and hidden), whereas with Aereo, you don’t have to ignore anything. I’d dislike this distinction because it’s “tails I win, heads you lose.” Copyright owners can argue either dissecting or holistic approaches to technology, but defendants must prove their system doesn’t infringe whether you look under the hood or not.

Put another way, if you can use hidden and incidental copying to enforce copyright (with sometimes anti-competitive effects), then you should be able use the same logic to avoid copyright.

Thanks for reading!

Rick Sanders

Rick is currently General Counsel for Software Freedom Conservancy. Previously, he has been practicing law as an intellectual-property litigator since 2000.