astra@vaxwaller.UUCP (NGLC Astra Detector) (02/14/86)
COPYRIGHT LAW (Copyright 1986 Breslow)
I am an attorney practicing copyright law and computer
law. I read a series of queries in Net.Legal about
copyright law and was dismayed to find that people who
had no idea what they were talking about were spreading
misinformation over the network. Considering that the
penalties for copyright infringement can include
$50,000.00 damages per infringed work, attorneys fees,
court costs, criminal fines and imprisonment, and
considering that ignorance is no excuse and innocent
intent is not even a recognized defense, I cringe to see
the network used as a soapbox for the ill-informed. For
that reason, this article will discuss copyright law and
license law as they pertain to computer software.
My goal is to enable readers to determine when they
should be concerned about infringing and when they can
relax about it. I also want to let programmers know how
to obtain copyright for their work. I'll explain the
purpose of software licenses, and discuss the effect
that the license has on copyright. For those of you who
are programmers, I'll help you decide whether you own
the programs you write on the job or your boss owns
them. I will also mention trademark law and patent law
briefly, in order to clarify some confusion about which
is which. Incidentally, if you read this entire essay,
you will be able to determine whether or not the essay
is copyrighted and whether or not you can make a
printout of it.
This is a long article, and you may not want to
read all of it. Here is an outline to help you decide
what to read and what to ignore:
PART ONE: THE MEANING OF COPYRIGHT FROM THE VIEWPOINT
OF THE SOFTWARE USER
0.1 A bit of history
0.2 The meaning of "copyright"
0.3 The meaning of "public domain"
0.4 A hypothetical software purchase
0.5 - 0.6 Can you use copyrighted software?
0.7 Can you make a backup copy?
0.8 Licenses may change the rules
0.9 Can you modify the program?
0.10 Can you break the copy protection scheme?
0.11 Summary
PART TWO: COPYRIGHT SOUNDS NEAT -- HOW DO I GET ONE?
OR, HOW DO I KNOW IF THIS PROGRAM IS COPYRIGHTED?
0.12.1 How do you get a copyright?
0.12.2 How do you lose a copyright?
0.12.3 How do you waste a stamp?
0.12.4 Do you have to register?
0.13 How copyright comes into existence
0.14 - 0.17 The copyright notice
0.18 Advantages of registration
0.19 A test to see if you understand this article
PART THREE: WHO OWNS THE PROGRAM YOU WROTE?
0.20 Introduction
0.21 - 0.22 Programs written as an employee
0.23 - 0.25 Programs written as a contractor
PART FOUR: A BRIEF WORD ABOUT LICENSES
0.26 Why a license?
0.27 Is it valid?
PART FIVE: I HAVE A NEAT IDEA. CAN I TRADEMARK IT?
WHAT ABOUT A PATENT?
0.28 Trademark law explained
0.29 Patent law
0.39 CONCLUSION: Where to find me for more info.
PART ONE: THE MEANING OF COPYRIGHT FROM THE
VIEWPOINT OF THE SOFTWARE USER
0.1 If you're not interested in history, you can
skip this paragraph. "Modern" copyright law first came
into existence in 1570, by an act of Parliament called
the Statute of Anne. Like most laws, it hasn't changed
much since. It was written with books and pictures in
mind. Parliament, lacking the foresight to predict the
success of the Intel and IBM corporations, failed to
consider the issue of copyrighting computer programs.
At first, courts questioned whether programs could be
copyrighted at all. The problem was that judges
couldn't read the programs and they figured the
Copyright Law was only meant to apply to things humans
(which arguably includes judges) could read without the
aid of a machine. I saw some mythical discussion about
that in some of the net.legal drivel. Let's lay that to
rest: programs are copyrightable as long as there is
even a minimal amount of creativity. The issue was laid
to rest with the Software Act of 1980. That Act
modified the Copyright Act (which is a Federal law by
the way), in such a way as to make it clear that
programs are copyrightable. The few exceptions to this
rule will rarely concern anyone. The next question to
arise was whether a program was copyrightable if it was
stored in ROM rather than on paper. The decision in
the Apple v. Franklin case laid that to rest: it is.
0.2 Now, what is copyright? As it is commonly
understood, it is the right to make copies of something
-- or to put it the other way around, it is the right to
prohibit other people from making copies. This is known
as an exclusive right -- the exclusive right to
"reproduce," in the biological language of the Copyright
Act -- and what most people don't know is that copyright
involves not one, not two, but five exclusive rights.
These are (1) the exclusive right to make copies, (2)
the exclusive right to distribute copies to the public,
(3) the exclusive right to prepare "derivative works"
(I'll explain, just keep reading), (4) the exclusive
right to perform the work in public (this mainly applies
to plays, dances and the like, but it could apply to
software), and (5) the exclusive right to display the
work in public (such as showing a film).
0.3 Before we go any further, what is public
domain? I saw some discussion on the net about public
domain software being copyrighted. Nonsense. The
phrase "public domain," when used correctly, means the
absence of copyright protection. It means you can copy
public domain software to your heart's content. It
means that the author has none of the exclusive rights
listed above. If someone uses the phrase "public
domain" to refer to "freeware" (software which is
copyrighted but is distributed without advance payment
but with a request for a donation), he or she is using
the term incorrectly. Public domain means no copyright
-- no exclusive rights.
0.4 Let's look at those exclusive rights from the
viewpoint of someone who has legitimately purchased a
single copy of a copyrighted computer program. For the
moment, we'll have to ignore the fact that the program
is supposedly licensed, because the license changes
things. I'll explain that later. For now, assume you
went to Fred's Diner and Software Mart and bought a
dozen eggs, cat food and a word processing program. And
for now, assume the program is copyrighted.
0.5 What can you do with this copyrighted
software? Let's start with the obvious: can you use it
on your powerful Timex PC? Is this a joke? No. Prior
to 1980, my answer might have been No, you can't use it!
And people actually pay me for advice like that! Well
think: you take the floppy disk out of the zip lock
baggy, insert it in drive A and load the program into
RAM. What have you just done? You've made a copy in
RAM -- in legalese, you've reproduced the work, in
violation of the copyright owner's exclusive right to
reproduce. (I better clarify something here: the
copyright owner is the person or company whose name
appears in the copyright notice on the box, or the disk
or the first screen or wherever. It may be the person
who wrote the program, or it may be his boss, or it may
be a publishing company that bought the rights to the
program. But in any case, it's not you. When you buy a
copy of the program, you do not become the copyright
owner. You just own one copy.)
0.6 Anyway, loading the program into RAM means
making a copy. The Software Act of 1980 addressed this
absurdity by allowing you to make a copy if the copy "is
created as an essential step in the utilization of the
computer program in conjunction with a machine and . . .
is used in no other manner . . . ." By the way,
somebody tell me what "a machine" means. If you connect
5 PC's on a network is that "a machine" or several
machines? A related question is whether or not running
software on a network constitutes a performance. The
copyright owner has the exclusive right to do that,
remember?
0.7 OK, so you bought this copyrighted program
and you loaded it into RAM or onto a hard disk without
the FBI knocking on your door. Now can you make a
backup copy? YES. The Software Act also provided that
you can make a backup copy, provided that it "is for
archival purposes only . . . ." What you cannot do,
however, is give the archive copy to your friend so that
you and your pal both got the program for the price of
one. That violates the copyright owner's exclusive
right to distribute copies to the public. Get it? You
can, on the other hand, give both your original and
backup to your friend -- or sell it to him, or lend it
to him, as long as you don't retain a copy of the
program you are selling. Although the copyright owner
has the exclusive right to distribute (sell) copies of
the program, that right only applies to the first sale
of any particular copy. By analogy, if you buy a
copyrighted book, you are free to sell your book to a
friend. The copyright owner does not have the right to
control resales.
0.8 At this point, let me remind you that we have
assumed that the program you got at the store was sold
to you, not licensed to you. Licenses may change the
rules.
0.9 Now, you're a clever programmer, and you know
the program could run faster with some modifications.
You could also add graphics and an interactive mode and
lots of other stuff. What does copyright law say about
your plans? Well . . . several different things,
actually. First, recall that the copyright owner has
the exclusive right to make derivative works. A
derivative work is a work based on one or more
preexisting works. It's easy to recognize derivative
works when you think about music or books. If a book is
copyrighted, derivative works could include a
screenplay, an abridged edition, or a translation into
another language. Derivative works of songs might be
new arrangements (like the jazz version of Love Potion
Number 9), a movie soundtrack, or a written
transcription, or a "long version," (such as the fifteen
minute version of "Wipe Out" with an extended drum solo
for dance parties). In my opinion, you are making a
derivative work when you take the store-bought word
processor and modify it to perform differently. The
same would be true if you "translated" a COBOL program
into BASIC. Those are copyright infringements -- you've
horned in on the copyright owner's exclusive right to
make derivative works. There is, however, some
breathing room. The Software Act generously allows you
to "adapt" the code if the adaptation "is created as an
essential step in the utilization of the computer
program in conjunction with a machine . . . ." For
example, you might have to modify the code to make it
compatible with your machine.
0.10 Moving right along, let's assume your store-
bought program is copy protected, and you'd really like
to make a backup copy. You know this nine-year-old whiz
who can crack any copy-protection scheme faster than you
can rearrange a Rubix cube. Is there a copyright
violation if he succeeds? There's room to argue here.
When you try to figure out if something is an
infringement, ask yourself, what exclusive right am I
violating? In this case, not the right to make copies,
and not the right to distribute copies. Public
performance and display have no relevance. So the key
question is whether you are making a "derivative work."
My answer to that question is, "I doubt it." On the
other hand, I also doubt that breaking the protection
scheme was "an essential step" in using the program in
conjunction with a machine. It might be a "fair use,"
but that will have to wait for another article. Anyone
interested in stretching the limits of the "fair use"
defense should read the Sony "Betamax" case.
0.11 Let me summarize. Copyright means the
copyright owner has the exclusive right to do certain
things. Copyright infringement means you did one of
those exclusive things (unless you did it within the
limits of the Software Act, i.e., as an essential step .
. . .).
0.12 PART TWO: COPYRIGHT SOUNDS NEAT -- HOW DO I
GET ONE? OR, HOW DO I KNOW IF THIS PROGRAM IS
COPYRIGHTED?
0.12.1 If you've written an original
program, what do you have to do to get a copyright?
Nothing. You already have one.
0.12.2 If you've written an original
program, what do you have to do to lose your copyright
protection? Give copies away without the copyright
notice.
0.12.3 If you mail the program to yourself
in a sealed envelope, what have you accomplished?
You've wasted a stamp and an envelope and burdened the
postal system unnecessarily.
0.12.4 Do you have to register your program
with the U.S. Copyright Office? No, but it's a damn
good idea.
0.13 Copyright protection (meaning the five
exclusive rights) comes into existence the moment you
"fix" your program in a "tangible medium." That means
write it down, or store it on a floppy disk, or do
something similar. Registration is optional. The one
thing you must do, however, is protect your copyright by
including a copyright notice on every copy of every
program you sell, give away, lend out, etc. If you
don't, someone who happens across your program with no
notice on it can safely assume that it is in the public
domain (unless he actually knows that it is not).
0.14 The copyright notice has three parts. The
first can be either a c with a circle around it, or the
word "copyright" or the abbreviation "Copr." The c
with a circle around it is preferable, because it is
recognized around the world; the others are not. That's
incredibly important. Countries around the world have
agreed to recognize and uphold each others' copyrights,
but this world-wide protection requires the use of the c
in a circle. On disk labels and program packaging, use
the encircled c. Unfortunately, computers don't draw
small circles well, so programmers have resorted to a c
in parentheses: (c). Too bad. That has no legal
meaning. When you put your notice in the code and on
the screen, use "Copyright" or "Copr." if you can't make
a circle.
0.15 The second part of the notice is the "year
of first publication of the work." "Publication"
doesn't mean distribution by Osborne Publishing Co. It
means distribution of copies of the program to the
public "by sale or other transfer of ownership, or by
rental, lease, or lending." So when you start handing
out or selling copies of your precious code, you are
publishing. Publication also takes place when you
merely OFFER to distribute copies to a group for further
distribution. Your notice must include the year that
you first did so.
0.16 The third part of the notice is the name of
the owner of the copyright. Hopefully, that's you, in
which case your last name will do. If your company owns
the program -- a legal issue which I will address later
in this article -- the company name is appropriate.
0.17 Where do you put the notice? The general
idea is to put it where people are likely to see it.
Specifically, if you're distributing a human-readable
code listing, put it on the first page in the first few
lines of code, and hard code it so that it appears on
the title screen, or at sign-off, or continuously. If
you're distributing machine-readable versions only, hard
code it. As an extra precaution, you should also place
the notice on the gummed disk label or in some other
fashion permanently attached to the storage medium.
0.18 Now, why register the program? If no one
ever rips off your program, you won't care much about
registration. If someone does rip it off, you'll kick
yourself for not having registered it. The reason is
that if the program is registered before the
infringement takes place, you can recover some big bucks
from the infringer, called statutory damages, and the
court can order the infringer to pay your attorneys
fees. Registration only costs $10.00, and it's easy to
do yourself. The only potential disadvantage is the
requirement that you deposit the first and last 25 pages
of your source code, which can be inspected (but not
copied) by members of the public.
0.19 Now, someone tell me this: is this article
copyrighted? Can you print it?
0.20 PART THREE: WHO OWNS THE PROGRAM YOU WROTE?
The starting point of this analysis is that if you wrote
the program, you are the author, and copyright belongs
to the author. HOWEVER, that can change instantly.
There are two common ways for your ownership to shift to
someone else: first, your program might be a "work for
hire." Second, you might sell or assign your "rights"
in the program, which for our purposes means the
copyright.
0.21 Most of the programs which you write at
work, if not all of them, belong to your employer.
That's because a program prepared by an employee within
the scope of his or her employment is a "work for hire,"
and the employer is considered the "author." This is
more or less automatic if you are an employee -- no
written agreement is necessary to make your employer the
copyright owner. By contrast, if you can convince your
employer to let you be the copyright owner, you must
have that agreement in writing.
0.22 By the way, before you give up hope of
owning the copyright to the program you wrote at work,
figure out if you are really an employee. That is
actually a complex legal question, but I can tell you
now that just because your boss says you are an employee
doesn't mean that it's so. And remember that if you
created the program outside the "scope" of your job, the
program is not a "work for hire." Finally, in
California and probably elsewhere, the state labor law
provides that employees own products they create on
their own time, using their own tools and materials.
Employment contracts which attempt to make the employer
the owner of those off-the-job "inventions" are void, at
least in sunny California.
0.23 Wait a minute: I'm an independent
contractor to Company X, not an employee. I come and go
as I please, get paid by the hour with no tax withheld,
and was retained to complete a specific project. I
frequently work at home with my own equipment. Is the
program I'm writing a "work for hire," owned by the
Company? Maybe, maybe not. In California, this area is
full of landmines for employers, and gold for
contractors.
0.24 A contractor's program is not a "work for
hire," and is not owned by the company, unless (1) there
is a written agreement between the company and the
contractor which says that it is, and (2) the work is a
"commissioned work." A "commissioned work" is one of
the following: (a) a contribution to a "collective
work," (b) an audiovisual work (like a movie, and maybe
like a video game), (c) a translation, (d) a
compilation, (e) an instructional text, (f) a test or
answer to a test, or (g) an atlas. I know you must be
tired of definitions, but this is what the real legal
world is made of. An example of a collective work is a
book of poetry, with poems contributed by various
authors. A piece of code which is incorporated into a
large program isn't a contribution to a collective work,
but a stand-alone program which is packaged and sold
with other stand-alone programs could be.
0.25 So where are we? If you are a contract
programmer, not an employee, and your program is a
"commissioned work," and you have a written agreement
that says that the program is a "work for hire" owned by
the greedy company, who owns the program? That's right,
the company. But guess what? In California and
elsewhere the company just became your employer! This
means that the company must now provide worker's
compensation benefits for you AND UNEMPLOYMENT
INSURANCE.
0.26 PART FOUR: A BRIEF WORD ABOUT LICENSES.
When you get software at the local five and dime, the
manufacturer claims that you have a license to use that
copy of the program. The reason for this is that the
manufacturer wants to place more restrictions on your
use of the program than copyright law places. For
example, licenses typically say you can only use the
program on a single designated CPU. Nothing in the
copyright law says that. Some licenses say you cannot
make an archive copy. The copyright law says you can,
remember? But if the license is a valid license, now
you can't. You can sell or give away your copy of a
program if you purchased it, right? That's permitted by
copyright law, but the license may prohibit it. The
more restrictive terms of the license will apply instead
of the more liberal copyright rules.
0.27 Is the license valid? This is hotly debated
among lawyers. (What isn't? We'll argue about the time
of day.) A few states have passed or will soon pass
laws declaring that they are valid. A few will go the
other way. Federal legislation is unlikely. My
argument is that at the consumer level, the license is
not binding because there is no true negotiation (unless
a state law says it is binding), but hey that's just an
argument and I'm not saying that that's the law. In any
case, I think businesses which buy software will be
treated differently in court than consumers. Businesses
should read those licenses and negotiate with the
manufacturer if the terms are unacceptable.
0.28 FINALLY, PART FIVE: I HAVE A NEAT IDEA.
CAN I TRADEMARK IT? WHAT ABOUT PATENT?
Sorry, no luck. Trademark law protects names: names of
products and names of services. (Note that I did not
say names of companies. Company names are not
trademarkable.) If you buy a program that has a
trademarked name, all that means is that you can't sell
your own similar program under the same name. It has
nothing to do with copying the program.
0.29 Patent law can apply to computer programs,
but it seldom does. The main reasons it seldom applies
are practical: the patent process is too slow and too
expensive to do much good in the software world. There
are also considerable legal hurdles to overcome in order
to obtain a patent. If, by chance, a program is
patented, the patent owner has the exclusive right to
make, use or sell it for 17 years.
0.30 CONCLUSION: I know this is a long article,
but believe it or not I just scratched the surface.
Hopefully, you'll find this information useful, and
you'll stop passing along myths about copyright law. If
anyone needs more information, I can be reached at (415)
932-4828, or by mail at 1225 Alpine Road, Suite 200,
Walnut Creek, CA 94596. Sorry, but I do not usually have
access to the network, so you can't reach me there.
Thank you. JORDAN J. BRESLOW
--
Lisa Breslow (415) 939-2400 x2418
Varian Instruments 2700 Mitchell Dr. Walnut Creek, Ca. 94598
{zehntel,amd,fortune,resonex}!varian!lisa