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If I send a bunch of Internet packets containing the bytes of a copyrighted work to you, privately, is a "copy" of the work being made? And if so, by who?

Say we're talking about a song. Consider the following situations:

  1. I send the packets on my own initiative. They arrive at your computer and are ignored because you did not request them.

  2. You request the packets and I send them. Your computer plays back each packet's few milliseconds of audio and throws it away before processing the next one, so you do not construct a complete copy. This is what I expected you to do.

  3. You request the packets and I send them. You store all of the packets, so you end up with a complete copy, but I expected you to use them one at a time and throw them away.

  4. You request the packets and I send them. You store all the packets and end up with a complete copy, and I expected you to do that when I sent the packets.

  5. There aren't actually any packets; I have a long headphone cord that goes across the street to your house and when you ask for a song I plug my tape deck into it and hit play. I think there's a 50% chance you are just jamming out with your headphones and a 50% chance you are recording your own tape on your tape deck.

Are a bunch of ephemeral packets taken together (or some analog signals over time taken together) "a copy" of the song (as opposed to a bunch of copies of the individual moments of the song), even if they are never reassembled and do not all exist at the same time? For which of the activities above do I myself as the sender need a license from the copyright holder of this song? Are there any where you as the receiver need a license?

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    Milliseconds? Doesn't music streaming software buffer at least several seconds in memory to provide smooth playback in case or network speed irregularities?
    – Greendrake
    Feb 10 at 2:32
  • Would buffering several seconds produce a different legal effect than playing each packet as soon as it arrives?
    – interfect
    Feb 10 at 14:26
  • Buffering several seconds means making a copy of them, albeit temporarily. In general, several seconds of a copyrighted music track is long enough for an infringement case.
    – Greendrake
    Feb 10 at 23:37
  • If buffering several seconds of copyrighted music is not allowed without a license from the copyright holder, how does internet radio or playing music from YouTube work?
    – interfect
    Feb 13 at 22:54
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    You are only making that copy when streaming content that is licensed to be streamed. You are not making copies outside of that context. My understanding is that the broadcaster's license includes the permission to buffer content on the receiver's computer, whoever is deemed to be making the copy. I'm not too sure though, that's why I'm not posting an answer.
    – Greendrake
    Feb 14 at 23:16

1 Answer 1

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17 U.S.C. § 101:

"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.

"Material object" has been held to include forms of computer storage, including RAM.

In your scenarios (taking their assertions at face value):

  1. There is no copy of the work.
  2. There is no copy of the work.
  3. There is a copy of the work.
  4. There is a copy of the work.
  5. There is no copy of the work if one is just jamming out with headphones; there is a copy of the work if a recording of the work is made on a tape deck.

Of course, on different facts, the above conclusions may be different.

Note: there ways to infringe copyright without creating a copy of the complete work.

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    – Pat W.
    Feb 10 at 22:19

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