Early disclaimer: IANAL.

>Explain the use of "superfluous" in that sentence, please.

Meaning works that were thought to enhance culture, or, as the Constitution puts it "Science and the Useful Arts", but which were not strictly necessary for anything to function.

Patents were the separate mechanism of intellectual property intended to protect inventions. Patents are correspondingly much weaker and required a disclosure of the invention's mechanisms.

In cyberspace, unfortunately, all of our inventions qualify for copyright (as well as patents) because they're expressed through the "creative work" of software code. This has left us in a situation where a critical component that we depend on every day may stop functioning, and there's nothing anyone can do about it, since practically just thinking about something is a copyright violation these days.

We should update the law so that software is eligible for IP protection only when its source code has been published, similar to the mechanism in place for patents, which requires the mechanisms of the invention to be disclosed.

>Can you give some examples of judges lamenting that?

You're right that I overstated the critical reception of the RAM copy doctrine. I was referring to this section of the judgment which put it forth in MAI v. Peak:

>However, it is generally accepted that the loading of software into a computer constitutes the creation of a copy under the Copyright Act. We recognize that these authorities are somewhat troubling since they do not specify that a copy is created regardless of whether the software is loaded into the RAM, the hard disk or the read only memory (“ROM”). However, since we find that the copy created in the RAM can be “perceived, reproduced, or otherwise communicated,” we hold that the loading of software into the RAM creates a copy under the Copyright Act.

The Court acknowledges that the concept of when the copy materializes was not well established and calls this "somewhat troubling", but eventually determines that due to the possibility of the content being "communicated" whilst stored in RAM, it should qualify as a copy.

For background, MAI v. Peak was a case about whether a technician had made an infringing copy by running a program installed on a user's PC in the course of maintenance. The Court ruled that since loading a program into RAM is a copy, he had created an infringing copy.

The exception added for computer programs arose from this case, but did not address the RAM copy doctrine. It makes an explicit exemption for "(c)Machine Maintenance or Repair." only. If you're not maintaining or repairing your friend's machine, but you still load up a game he's installed, you've technically made an infringing copy, just as this computer tech had, because you are not doing it for "maintenance or repair".

The RAM copy doctrine is inherently offensive. It makes equal sense to say that the copy created in your brain from the image reflected onto your retinas is an infringing copy, and there's actually a strong case that the image in your human memory is an infringing copy because it is stored in a fixed medium that can be communicated (after proper transformation, i.e., conversion into a sketch; just as a RAM copy requires transformation from numbers-in-memory into something that is displayed on a screen). The RAM copy is no different, except that a computer's "eyes" are not respected; what should matter is what happens with the copies that exist outside of RAM in an actually fixed or tangible form, the end result of the transitory memory "copy".

Neither RAM nor optical nor memorial copies should qualify for infringement on their own due to their transitory nature; you can even make this argument under current law, which requires copies to be fixed and permanent. A clarification is badly needed, correcting the Ninth Circuit's poor judgment in this case.

The real-world outcome is that the precedent set in Feist v. Rural Telco is no longer effective in cyberspace. It's impossible to open a web page and copy the bare, uncopyrightable facts out of it, because the necessary pre-requisite of downloading the exact compilation of facts, which is copyrightable, creates an infringing copy, which you could be successfully sued over even if your end product was not sufficiently derivative to be a derived work under copyright law, and even if the "white pages" never touch your disk; just using your computer to look at/read them without consent is illegal, since the act of loading content into a computer creates a copy.

Another contrived example under RAM copy doctrine: if you've downloaded a song illegally, you are not on the hook for only the copy on your hard disk, but the number of plays, since each one is a distinct infringing copy created by your computer loading the music into its memory repeatedly.

Follow-up question: if the program loads and unloads an unlicensed resource several times in the course of its operation, is each instance a new infringing copy?

There have been several scholarly articles written by actually qualified people (I'm not a lawyer) about how to resolve the issues incumbent in the RAM copy doctrine, so they can cover it. But this is just one example of several legal problems limiting participation and competition in the virtual market. We need to add law to fix this and similar problems.