Act didn't expressly require fixation, since generally it was limited to published works, the requirement was impliedly obvious. In a 1961 report to Congress on the revision of that Act, Register of Copyrights Abraham Kaminstein wrote it was "well established" that for a work to be a "writing," it had to be "fixed in some tangible form from which the work can be reproduced," 1961 Report at 9. (This belief, by the way, is why the bootleg statute in 1994 was enacted under the Commerce Clause).
In the 1976 Act, the concept of "copy" is intimately intertwined with that of fixation, since the definition of copy reads:
"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.
The definition of "fixed" in turn references "copy":
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. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
So why the definitions? The definition of copy came first, in 1965, in order to draw a distinction (made eventually in Section 202) between the material object and the intangible property. The definition of "fixed" came in 1966, in conjunction with the addition of audiovisual works as a separate category of subject matter in Section 102, and was intended to exclude from protection purely evanescent images. "Fixed," therefore, had to do with protectibility, and "copy" had to do with the difference between object and subject.
Both terms, have, however, had their greatest application for a very different and one would have expected, controversial purpose, infringement. The bellweather of the storm is the 9th Circuit's opinion in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993). That opinion held that the internal creation of a "copy" of software in RAM for diagnostic purposes was an infringing (as outside of a license) copy. The relevant discussion is surprisingly brief:
"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.'"
This approach confuses "fixed" and "copy" for protectibility purposes with "copy" in the infringement sense. The concept of "copy" in the infringement sense predates the definition of "copy" in the 1976 Act by over two hundred years, and as noted last week, has had, historically, a limited application; that is, many substantial reproductions (like fair abridgments and translations) were not deemed a "copy" at the infringement stage, even though the unauthorized work was quite fixed.
The 9th Circuit falsely conflated two very different concepts. The first concept is the degree to which an original work is a will-o'-wisp. The second concept is whether a concededly protected work has, to a material degree, been reproduced. The 9th Circuit and its progeny have assumed that because a temporary copy usually is of the entirety of the work, there is no question about it being a "copy" in the infringement senses. I think that is not necessarily true. Why, for example, shouldn't the infringement concept of "copy" take into account, as it historically did before 1976, a host of policy considerations such as the purpose of the copying and the benefit to the public from the use? It is not, fair use, by the way, that has a monopoly on such policy considerations; another example is the idea-expression dichotomy, a common law foundation of copyright.
The contours of "copy" in the infringement sense is a third example. Importantly, Congress declined to include a definition of infringement, that is "copy" in this sense, preferring to leave the matter up to the courts to handle in a common law manner. How bizarre, then, that a definition of "copy" included for a different purpose has not only come to serve as a definition Congress declined to provide, but, like Section 107, has served to prevent courts from continuing as common law adjudicators when new technological challenges are presented.
The critical error in the 9th Circuit's analysis, then, is that "copy" for infringement purposes is a common law concept; it is not co-extensive with (and maybe does not overlap at all) with the statutory definition, which is concerned with something else entirely. There is another parallel with fair use. The statutory recognition of fair use has had a devastating impact, misleading some courts into thinking Section 107 "codifies" fair use and leading to a 4-step by-the-numbers analysis. Instead, courts should view fair use for what it is, a common law concept; while courts must glance at the statutory factors, they are not bound by them and can find them helpful, determinative, or unhelpful, and they can create and apply their own considerations.
If defendant's "fixation" is evanescent, as in buffering or caching why, for infringement purposes, should it be deemed a "copy"? Such copying is not being done for its own value, but rather to facilitate a non-infringing use, such as a licensed public performance. Might not the same be true for intermediate copying and other copying technologically necessary for non-infringing activity (like limited searching of books)?
Thinking of "copy" all the lines suggested here would be more consistent with the historical meaning of the term, the purposes of copyright, and the purposes for the definitions of "fixed" and "copies." It is the 9th Circuit's approach that is revolutionary.