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MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 26 U.S.P.Q.2d (BNA) 1458 (9th Cir. 1993) (full-text), cert. dism., 510 U.S. 1033 (1994).

Factual Background[]

The defendant Peak Computer, Inc., performed hardware maintenance and repairs on computers made and sold by MAI Systems. In order to service a customer's computer, a Peak employee had to operate the computer and load and run the computer's copyrighted operating system software[1] and [diagnostic software]]. The issue for the court was whether, by loading the software into the computer's RAM,[2] the repairman created a "copy" as defined in 17 U.S.C. §101.[3] The resolution of this issue turned on whether the software's embodiment in the computer's RAM was "fixed," within the meaning of 17 U.S.C. §101.

Appellate Court Proceedings[]

The Ninth Circuit concluded that

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.[4]

The court referenced the "transitory duration" language but did not discuss or analyze it. The opinion noted that the defendants "vigorously" argued that the program's embodiment in the RAM was not a copy, but it does not specify the arguments defendants made.[5] This omission suggests that the parties did not litigate the significance of the "transitory duration" language, and the court therefore had no occasion to address it. This is unsurprising, because it seems fair to assume that the program was retained in the RAM for at least several minutes.


The Computer Maintenance Competition Assurance Act of 1998, a section of the Digital Millennium Copyright Act (DMCA) legislatively overruled this decision, permitting third party maintenance organizations to load software duly licensed by a customer into the computer for maintenance purposes.


  1. 991 F.2d at 513.
  2. To run a computer program, the data representing that program must be transferred from a data storage medium (such as a floppy disk or a hard drive) to a form of random access memory ("RAM") where the data can be processed.
  3. 991 F.2d at 517.
  4. Id. at 518 (quoting 17 U.S.C. §101).
  5. Id. at 517.