Another court stated that copying data into a ram buffer for under 1.2 seconds was allowed. Depending on how they structure this it might be legally allowed.
Thanks for that! Like I said, I'm not a lawyer and I'm sure there are other gaps in my case knowledge. It's certainly positive to see the Second Circuit recognizing that there is some need to consider the transient nature of RAM copies before ruling them infringing.
The ruling suggests that MAI v. Peak did not address the transitory argument merely because it was not raised by the litigants, and that the precedent set there (which wouldn't have necessarily been binding anyway) is therefore not abrogated by ruling that some RAM copies are transient enough to fail to qualify.
Importantly, the durations listed here describe the runtime of the content, not the amount of time the data is held in the RAM. It is said that the system would buffer 0.1 seconds (100ms) of content at one point and 1.2 seconds of content at another point.
The Court does not seem to establish "1.2 seconds" as a general benchmark for RAM transience, but rather it suggests that transience should be considered on a case-by-case basis, per the language of the statute.
However, the general rule of thumb is that if a copy exists long enough to derive any value from it, it is non-transient. Guidance from the Copyright Office [0] reads:
>[...] we believe that Congress intended the copyright owner’s exclusive right to extend to all reproductions from which economic value can be derived. The economic value derived from a reproduction lies in the ability to copy, perceive or communicate it. Unless a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicated, the making of that copy should fall within the scope of the copyright owner’s exclusive rights. The dividing line, then, can be drawn between reproductions that exist for a sufficient period of time to be capable of being "perceived, reproduced, or otherwise communicated" and those that do not. As a practical matter, as discussed above, this would cover the temporary copies that are made in RAM in the course of using works on computers and computer networks.
and scrapers have been held liable for copyright infringement via RAM copies on multiple occasions. Ticketmaster v. RMG states:
>[...] copies of ticketmaster.com webpages automatically stored on a viewer's computer are “copies” within the meaning of the Copyright Act.
despite the fact that they likely would've been held for a much shorter time than either 100ms or 1.2 seconds.
Notably, this was before the case referenced above, but it's typical of later cases, and it succinctly demonstrates that courts are likely to find RAM copies of an entire work (the web page) more likely to be of non-transitory nature than snippets of ~ 1/1500th of an entire work, regardless of how long they're stored in RAM.
https://books.google.ca/books?id=a-yu2-JUQNAC&pg=PT249&lpg=P...