online file backup and storage

DOJ Asks U.S. Supreme Court Not to Hear Case with Potential Major Impact on Cloud-Computing Copyright Issues

On May 29, 2009, the U.S. Department of Justice, submitted an amicus curiae brief which requested that the U.S. Supreme Court not accept certiorari in the case Cable News Network, Inc. v. CSC Holdings. The Cable News Network case is critical because it is one of the first to deal with the copyright infringement problems implicit in user-controlled remote data storage services. While the service at issue is a remote DVR service, the ruling could have a major impact on copyright issues faced by cloud computing services, as well.
Cloud computing is an umbrella term for computer services that permit user programs or data files to be stored remotely and then accessed via the Internet. A well-known example is the expected Google G-Drive, which has been described as “online file backup and storage” that will provide “reliable storage for [user] files, including photos, music and documents” and “allow [ users] to access [their] files from anywhere, anytime, and from any device – be it from [their] desktop, web browser or cellular phone.

The problem with remote data storage services is that computer storage necessarily requires making copies of program and data files — copying that could run afoul of the Copyright Act. The Copyright Act gives the copyright owner the right to “reproduce” its copyrighted work “in copies or phonorecords” 17 U.S,C. § 106(1). “Copies” are defined as “material objects . . . in which a work is fixed by any method . . . and from which a work can be perceived, reproduced or otherwise communicated. 17 U.S.C. § 101. A work is “fixed” 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 a transitory duration.” Id.

Based on these sections, many Circuit Courts have held that making even temporary copies of files, such as occurs when a computer program is downloaded into the random access memory (RAM) of a personal computer (PC), constitutes copying for purposes of the Copyright Act. See MAI Systems Corp., 991 F.2d 511 (9th Cir. 1993); Stenograph LLC v. Bossard Assoc., Inc., 144 F.3d 96 (D.C. Cir. 1998); Storage Technology Corp. v. Custom Hardward Engineering & Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005). This is sometimes called the “RAM copy” doctrine.