Is Turn About Fair Play? Copyright Law and the Fair Use of Computer Software Loaded Into RAM

Computer systems, especially those in heavy-use commercial settings, often require routine maintenance to continue functioning properly. Many businesses turn to an independent service organization (“IS0”) to provide computer maintenance services because ISOs frequently charge less than the original equipment manufacturer (“OEM”) for those services. The tremendous growth in computer use has spawned a multi-billion dollar computer maintenance industry in the United States, and ISOs and OEMs have become engaged in fierce competition for this computer service business. The struggle between ISOs and OEMs to capture this expanding market has spilled over into the courts, spawning a number of recent decisions in the area of copyright law that have added significant legal consequences to the mechanics of computer operation and maintenance. In particular, the Ninth Circuit in MAI Systems Corp. v. Peak Computer, Inc. ruled that, for purposes of the Copyright Act, loading software into a computer’s active memory – known as Random Access Memory (“RAM” ) – from a permanent storage device such as a hard disk, diskette, or Read Only Memory (“ROM” ) results in the making of a “copy” of the software. A user engages in “copying” under the Act by making a “fixed” copy of a copyrighted work. Concluding that software stored in RAM is “sufficiently permanent” to be perceived and used by the computer, the court in Peak held that software loaded into RAM constitutes a “fixed” copy of the original stored in permanent memory.