# MAI Systems v. Peak: When Loading Software Into RAM Became a Copy

> The Ninth Circuit held that loading copyrighted software from disk into RAM creates a fixed copy under the Copyright Act, exposing third-party repair technicians to infringement liability.

Topic: Copyright  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/mai-systems-v-peak-ram-copy-doctrine/


*MAI Systems Corp. v. Peak Computer, Inc.*, 991 F.2d 511 (9th Cir. 1993), is the decision that gave copyright law a foothold inside a computer's volatile memory. The Ninth Circuit held that when a machine loads a copyrighted program from a hard drive into random-access memory (RAM), it makes a "copy" within the meaning of the Copyright Act — a copy sufficiently fixed to be infringing. On its face the ruling was about a squabble between a computer manufacturer and an independent repair company, but its consequence was far larger: it meant that the ordinary act of turning on a computer, or running any licensed program, could implicate the reproduction right. The holding reshaped software licensing, seeded the independent-service-organization litigation of the 1990s, and prompted Congress to amend the statute.

## At a glance

- **Case:** *MAI Systems Corp. v. Peak Computer, Inc.*, 991 F.2d 511 (9th Cir. 1993)
- **Court:** United States Court of Appeals for the Ninth Circuit, on appeal from the Central District of California
- **Decided:** April 7, 1993
- **Opinion:** Circuit Judge Melvin T. Brunetti, for the panel
- **Subject matter:** Whether loading operating-system and diagnostic software into RAM during computer maintenance infringes the reproduction right, plus related trade-secret and copyright-license questions
- **Holding:** A program loaded from permanent storage into RAM is a "copy" fixed for more than a transitory duration, and a third-party maintenance provider that loads a licensor's software without authorization infringes the copyright

## The facts and the dispute

MAI Systems manufactured computers and designed the operating-system and diagnostic software that ran on them. It licensed that software to its customers under agreements that restricted use and did not, MAI contended, permit third parties to operate the software. Peak Computer was an independent maintenance company that serviced MAI machines for those same customers — a direct competitor to MAI's own lucrative service business. Eric Francis, a former MAI employee, had joined Peak and brought knowledge of MAI's operations with him.

To service a customer's computer, a Peak technician would switch the machine on. Booting the computer caused MAI's operating system to load automatically from the hard disk into RAM, and running MAI's diagnostic utilities loaded that software into RAM as well. MAI sued for copyright infringement, trade-secret misappropriation, and related claims, and obtained a preliminary injunction. Peak appealed, arguing that momentarily loading software into memory to run it could not be the kind of "copying" the Copyright Act forbids.

## The fixation holding

The Copyright Act grants the owner the exclusive right to reproduce the work in "copies," and defines "copies" as material objects in which a work is "fixed." A work is "fixed" when its embodiment is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." The question was whether the fleeting, electrically maintained representation of a program in RAM — which vanishes when power is cut — meets that standard.

The Ninth Circuit held that it does. Adopting the reasoning that a program in RAM can be "perceived, reproduced, or otherwise communicated" while the computer runs, the court concluded that "the loading of copyrighted computer software from a storage medium... into the memory of a central processing unit... causes a copy to be made." The court found support in the fact that the software in RAM was operational and could be, and was, used — the technician diagnosed the machine using precisely that loaded copy. Because Peak had no license or other authorization to make that copy, the loading infringed MAI's reproduction right.

The court's treatment of the "transitory duration" clause was notably brief, and that brevity is the root of the later criticism. The opinion did not analyze how long the representation persisted or whether it satisfied the durational element in its own right; it treated the operational, usable state of the program in memory as sufficient. That analytical gap would become the fault line for courts and commentators who thought the decision proved too much.

## Section 117 and the licensee trap

Peak's strongest statutory argument was 17 U.S.C. § 117, which permits the "owner of a copy" of a computer program to make another copy when that copy "is created as an essential step in the utilization of the computer program." If MAI's customers owned their copies, running the software to have it serviced would seem to fall comfortably within the provision.

The court closed that door by focusing on ownership. MAI distributed its software by license, not sale, and the licenses restricted the customers' rights. The court held that MAI's customers were **licensees rather than owners** of their copies, so § 117 did not shield the copies made on their machines. And even setting ownership aside, the court read the licenses as not permitting third parties — like Peak — to operate the software on the customer's behalf. The upshot was a powerful lesson in the leverage of the license: by characterizing distribution as licensing and drafting restrictions accordingly, a software vendor could convert routine third-party maintenance into an act of infringement. That leverage drove a wave of "independent service organization" copyright suits in which manufacturers used the reproduction right to protect their aftermarket service revenue.

## Open questions

*MAI v. Peak* left the durational limit on fixation undertheorized, and the ensuing decade tested how far its logic ran. If every program in RAM is a copy, are the transient buffer copies that pass through routers and streaming devices also infringing reproductions? The Second Circuit answered no in *Cartoon Network LP v. CSC Holdings, Inc.*, 536 F.3d 121 (2d Cir. 2008), holding that data buffered for roughly a second was not fixed for "more than transitory duration" and distinguishing *MAI* on the ground that the Ninth Circuit had never squarely analyzed the durational requirement. The tension between the two decisions — whether fixation turns on the ability to use the copy or on how long it persists — remains unresolved at the Supreme Court level, and it continues to matter for cloud computing, caching, and streaming architectures.

## Implications

- **Loading equals copying.** Under *MAI*, running a program can itself implicate the reproduction right; the act of putting software into memory to use it is not automatically outside copyright's reach.
- **License drafting is leverage.** Characterizing software distribution as a license rather than a sale, and restricting third-party operation, can turn ordinary maintenance and use into infringement — a strategy vendors exploited for years.
- **Congress carved out repair.** The 1998 Digital Millennium Copyright Act added 17 U.S.C. § 117(c), letting an independent service organization load software into RAM to maintain or repair a machine, directly overriding *MAI* on its facts.
- **Fixation still fractures the circuits.** *Cartoon Network* narrowed *MAI*'s reach for momentary buffer copies, so whether a transient RAM copy is "fixed" can depend on the circuit and the duration involved.

## Frequently asked questions

**What did MAI Systems v. Peak decide about RAM?** The Ninth Circuit held that loading a copyrighted program from a hard drive into a computer's random-access memory (RAM) creates a "copy" that is sufficiently fixed to be actionable under the Copyright Act, because the representation in RAM can be perceived, reproduced, or otherwise communicated while the machine is running.

**Why couldn't Peak rely on the Section 117 defense?** Section 117 lets the "owner" of a copy of a program make copies essential to using it. The court found MAI's customers were licensees, not owners, and that their licenses did not authorize a third-party maintenance company like Peak to load the software, so the defense was unavailable to Peak.

**Is MAI v. Peak still good law?** Its core fixation holding has been narrowed. Congress enacted 17 U.S.C. § 117(c) in 1998 to let independent service organizations load software during repair, and the Second Circuit in *Cartoon Network v. CSC* (2008) questioned *MAI*'s reasoning where a copy exists only momentarily and fails the "more than transitory duration" requirement.

## Authorities and sources

- *MAI Systems Corp. v. Peak Computer, Inc.*, 991 F.2d 511 (9th Cir. 1993) (decided April 7, 1993; Brunetti, J.). [Justia](https://law.justia.com/cases/federal/appellate-courts/F2/991/511/) full-text opinion.
- Fixation, RAM-copy, and § 117 holdings, plus the 1998 congressional response, corroborated by [Wikipedia: MAI Systems Corp. v. Peak Computer, Inc.](https://en.wikipedia.org/wiki/MAI_Systems_Corp._v._Peak_Computer,_Inc.)
- Statutory text of the repair exemption: [17 U.S.C. § 117 (Cornell Legal Information Institute)](https://www.law.cornell.edu/uscode/text/17/117).
- Later narrowing of the fixation analysis: *Cartoon Network LP v. CSC Holdings, Inc.*, 536 F.3d 121 (2d Cir. 2008), [Justia](https://law.justia.com/cases/federal/appellate-courts/ca2/07-1480/07-1480-2011-03-16.html).