Empirics prove technology outpaces copyright laws overburdening the courts.

4. Issues Current copyright laws are unsatisfactory about whether an ISP infringes a server's copyrights by facilitating its subscribers' extraction of preexisting mate- rials compiled in the server's electronic files. Current copyright law issues in- clude: (1) the unsettled duration requirement in the RAM-copy doctrine; (2) a fair use defense that is both time consuming to maintain and whose outcome is hard to predict; and (3) the doctrine of copyright misuse, which is also fact- specific and may be limited to antitrust claims. As described in Part I.A.l, the role of the duration requirement in the RAM- copy test is unsettled. How should courts decide what constitutes "a period of more than a transitory duration"?102 The scale of time in the digital world differs from that of the real world. Judging by the standard of computer time, just a few seconds may be sufficient for a copy to be fixed,103 while the word "transitory" may mean at least minutes or days in the real world.104 A fixed figure for all contexts seems impossible and unfeasible, because with the development of new technology any fixed threshold could soon become outmoded. But courts should not therefore forgo their duty to make a rational construction of the "copy" defi- nition. It may be reasonable to expect fair use to resolve this problem.105 The fair use defense is a defendant's final and most reliable fortress against a copyright infringement claim. The fair use doctrine, however, is an ex post standard.106 No party can know for sure whether the use qualifies as a fair use until the court reaches its decision. Moreover, this defense is fact-dependent, which means that most cases must go through a time and resource consuming discovery process and even trial before the court can resolve this issue. Of course, when "the parties dispute only ultimate conclusions to be drawn from an admitted set of facts, the court may resolve the fair use defense ... on a summary judgment."107 But defendants still bear a heavy burden of proving each factor enumerated in the statute.108 So the determination of fair use is a resource intensive endeavor and the outcome is hard to predict. Like the fair use doctrine, the defense of copyright misuse is fact-specific and therefore time consuming as well. But unlike the fair use defense, courts disagree about whether this doctrine should be applied independently from anti- trust laws.109 The scope of the copyright misuse doctrine "is not well understood in practice," either. 1 10 Thus, the doctrine of copyright misuse could pose more problems than those of the fair use defense. The uncertainties in the construction of the duration requirement and in the affirmative defenses thus necessitate a clearer and simpler standard in determin- ing the existence of infringement, at least when such a standard is feasible. The "transitory duration" element of the statutory definition of fixation may provide a standard for an important class of cases.