lisa@vaxwaller.UUCP (Lisa Breslow) (10/11/88)
This is a new version of Jordan's latest Copyright Law article.
He has rewritten it because a few people had trouble understanding it.
MORE COPYRIGHT LAW
Copyright Jordan J. Breslow 1988
All rights reserved
(415) 932-4828
Some time ago, I posted a lengthy article on Usenet and
elsewhere about copyright law, with the clever title, "COPYRIGHT
LAW." Many of you were kind enough to send me questions about
copyright and software, and from time to time I'll try to address
them. This article will address the touble you can get into if
you find software that has no copyright notice on it and you assume
that it is in the public domain. The consequences may amaze you.
As I explained in "Copyright Law," someone who claims a
copyright in a computer program or book or work of art is supposed
to let the world know that he claims copyright by placing a
copyright notice on the work. A copyright notice usually has three
elements: (1) the name of the copyright owner, (2) the year in
which the work was first distributed, and (3) the word "Copyright"
or the letter c enclosed in a circle.
If you find a computer program on a bulletin board or in a
user group library and you do see a copyright notice displayed by
the program, you should assume that the program is copyrighted.
That means you can't copy it, and you certainly can't sell or
distribute copies to your friends. However, if you find a computer
program that does *not* display a copyright notice, can you safely
assume that there is no copyright? Can you assume that the work
is in the public domain? Can you copy the program to your heart's
content? Not necessarily.
You already know that ignorance of the law is not an excuse for
committing a crime. In Copyright Law, not even *innocence* will
protect you.
Suppose your friend Buddy drops by with a six-pack of your
favorite libation and a new adventure game called "FIGHT
STIMULATOR". The game is stored on a floppy disk, and Buddy says
he downloaded it from a The People's Evolutionary Bulletin Board.
The only label on Buddy's disk is the disk manufacturer's name and
logo. Hence, there is no copyright notice on the disk. You boot
up the game, and the first screen has the following message, posted
by Anonymous Infringer when he uploaded the game to the bulletin
board: "I THINK THIS GAME IS IN THE PUBLIC DOMAIN. I FOUND IT IN
OUR USER GROUP LIBRARY. DISCLAIMER: I'M NOT A LAWYER." Suppose
further that you like the game so much you make 1000 copies of it
and sell them for $24.95 (under $25.00!) each. Along comes an
apocalyptic letter from the law firm of Doom & Gloom, advising you
that its client, MacroHard, Inc., owns the copyright to FIGHT
STIMULATOR, and that unless you stop making illegal copies you will
be cruelly and unusually punished in a court of law.
What kind of trouble are you in?
The first rule is this: IF A COPYRIGHT OWNER MAKES AN
*UNEXCUSED* OMISSION OF THE COPYRIGHT NOTICE, "INFRINGERS" ARE OFF
THE HOOK. If the author or programmer simply never bothers to put
a copyright notice on any copies of his program, he has placed his
work in the public domain. For example, consider the situation in
which MacroHard, Inc. (the software author) placed a copy of the
game in the libraries of hundreds of user groups, and published
listings of the game in a magazine called "Public Domain," all
without any copyright notice. In this situation, MacroHard, Inc.
has made an *UNEXCUSED OMISSION* of the copyright notice. As a
result, MacroHard, Inc.'s copyright is lost. You can copy the
program to your heart's content.
The second rule is this: IF A COPYRIGHT OWNER MAKES AN
*EXCUSED* OMISSION OF THE COPYRIGHT NOTICE, *INNOCENT* INFRINGERS
ARE OFF THE HOOK. In order to make sense of this rule, you need
to know two things: when is an omission of the copyright notice
excused, and when is an infringer innocent?
The omission of a copyright notice by the program's author is
excused under a number of circumstances.
Circumstance one: An omission is excused if the notice was
removed, destroyed or obliterated by some third party without the
consent of the copyright owner. Therefore, following our
hypothetical for FIGHT STIMULATOR, if MacroHard, Inc. placed the
game in the user group library bearing the proper notice and
Anonymous Infringer, without permission, simply removed the
copyright notice when he posted the game to the bulletin board, the
absence (omission) of the copyright notice on the bulletin board
posting is excused. This is true even if MacroHard, Inc. knew that
games placed in user group libraries are frequently posted to
bulletin boards with the copyright notice removed. Removal of the
copyright notice by Anonymous Infringer was probably criminal, and
an MacroHard, Inc. is legally entitled to assume that other people
will obey the law (even if he knows better).
Circumstance two: Omission of the copyright notice may also
be excused if the notice was omitted from a "relatively small
number" of copies. This forgiving provision may rescue a
programmer who gave copies of his game to trusted friends and
relatives before taking it seriously enough to place a copyright
notice on it. ("Relatively" is a slippery term, and programmers
should get into the good habit of placing a notice on their work
rather than relying on this nebulous defense.)
Circumstance three: Even if notice was omitted from more than
a "relatively small number" of copies, the author can forestall
total disaster by (1) registering the work with the Copyright
Office within five years of the distribution without the notice,
and (2) making a "reasonable effort" to add the notice to all
copies of the work which have not yet been distributed to the
general public (such as all the copies in his publishing company's
and distributors' warehouses).
As a reminder, we are considering the following rule: if a
copyright owner makes an *EXCUSED* omission of the copyright
notice, *INNOCENT* infringers are off the hook. So now we turn to
part two of the rule. When is an infringer "innocent"? Those
of you who read my Copyright Law article may recall my warning that
"innocent intent is not even a recognized defense" to copyright
infringement. I haven't changed my mind, but the rule is subject
to this qualification: someone who infringes is "innocent" if (1)
he was misled by the absence of a copyright notice into believing
that there was no copyright, and (2) the copy of the program which
misled him (the one without the notice) was an authorized copy of
the program, i.e., the copy was distributed with the consent of the
copyright owner.
This rule, then, has two main parts, and part two is a doozy.
First, to be innocent, the infringer must prove that he was misled
by the omission of the copyright notice into believing that the
work was in the public domain. Second, the copy which fooled him
must have been an authorized copy, i.e., distributed with the
consent of the copyright owner. To understand how difficult this
rule can be to the end user, consider the following scenarios:
Scenario 1: MacroHard, Inc. posts one copy of its game
to a bulletin board but accidentally forgets to include a copyright
notice. All remaining copies sold by MacroHard have the notice.
You see the copy without the notice, download it and sell copies
of it at a swap meet. MacroHard's omission of the copyright notice
from a relatively small number of copies distributed by MacroHard
was excused. You were misled by the absence of a copyright notice.
The copy which misled you was distributed by MacroHard, so it was
an authorized copy. Congratulations, you are innocent.
Scenario 2: MacroHard, Inc. puts a copyright notice
on all copies it sells. Without MacroHard's permission, Anonymous
Infringer removes the copyright notice and posts the game to a
bulletin board. You see the copy without the notice, download it
and sell copies of it at a swap meet. MacroHard's omission was
excused because the copy was not posted to the bulletin board with
its consent. You were misled by the absence of a copyright notice.
But the copy which misled you was not authorized by MacroHard.
Sorry, but you are not innocent.
Obviously, the scenarios are the same from your
perspective -- you were misled by the absence of a notice -- but
the results can be very different. Yet there was probably no way
for you to know whether the copy you saw on the bulletin board was
(1) in the public domain -- you're scott free, (2) distributed
without permission -- you're an infringer, or (3) distributed with
permission but with the notice accidentally removed -- you're an
innocent infringer.
If your infringement was innocent, you have a *partial*
defense. You will not be liable to the copyright owner for
"damages" (money equal to the injury you caused to the copyright
owner), but you can still be ordered to fork over all of the
profits you earned from your innocent infringement!
Amazing, no? As before, I do not have regular access to the
network, so please send any questions or comments to Jordan J.
Breslow, 1225 Alpine Road, Suite 200, Walnut Creek, CA 94596,
telephone (415) 932-4828, FAX (415) 932-4681, or MCI mail 261-9512.
Thanks.
--
Lisa Breslow (415) 939-2400 x2418
Varian Instruments 2700 Mitchell Dr. Walnut Creek, Ca. 94598
{zehntel,amd,fortune,resonex}!varian!lisahenry@utzoo.uucp (Henry Spencer) (10/14/88)
In article <1930@vaxwaller.UUCP> lisa@vaxwaller.UUCP (Lisa Breslow) writes: >...the word "Copyright" >or the letter c enclosed in a circle. A caution on this: the letter c enclosed in parentheses may be the closest approximation to c-in-a-circle that can be produced on limited output devices, but it has zero legal standing. If you cannot produce a real, complete circle around the c, use the word "Copyright" instead. -- The meek can have the Earth; | Henry Spencer at U of Toronto Zoology the rest of us have other plans.|uunet!attcan!utzoo!henry henry@zoo.toronto.edu
dtynan@sultra.UUCP (Der Tynan) (10/15/88)
In article <1988Oct13.173958.11367@utzoo.uucp>, henry@utzoo.uucp (Henry Spencer) writes: > > [...] the letter c enclosed in parentheses may be the closest > approximation to c-in-a-circle that can be produced on limited output devices, > but it has zero legal standing. If you cannot produce a real, complete circle > around the c, use the word "Copyright" instead. > -- > The meek can have the Earth; | Henry Spencer at U of Toronto Zoology > the rest of us have other plans.|uunet!attcan!utzoo!henry henry@zoo.toronto.edu Everything I've read on software copyright, have said the (c) was OK. However, they ALWAYS included the word Copyright anyway. Why not use the *full* label anyway; Copyright (c) 1988, Tynan Computers. All rights reserved. That pretty much locks it up. As a quick disclaimer, I must say that I have yet to sue anyone for breach of any of my copyrighted stuff, so who knows? - Der BTW; for those Legal Eagles out there who hate us non-professionals even *discussing* the issue, stop talking about C or UN*X :-) -- Reply: dtynan@sultra.UUCP (Der Tynan @ Tynan Computers) {mips,pyramid}!sultra!dtynan Cast a cold eye on life, on death. Horseman, pass by... [WBY]
henry@utzoo.uucp (Henry Spencer) (10/16/88)
In article <1988Oct13.173958.11367@utzoo.uucp> henry@utzoo.uucp (Henry Spencer) writes: >... If you cannot produce a real, complete circle >around the c, use the word "Copyright" instead. I'm told that even this may not suffice internationally, and circle-c may be the *only* thing that does the job. -- The meek can have the Earth; | Henry Spencer at U of Toronto Zoology the rest of us have other plans.|uunet!attcan!utzoo!henry henry@zoo.toronto.edu
chuq@plaid.Sun.COM (Chuq Von Rospach) (10/17/88)
>>... If you cannot produce a real, complete circle >>around the c, use the word "Copyright" instead. >I'm told that even this may not suffice internationally, and circle-c may >be the *only* thing that does the job. According the the copyright laws (I'm paraphrasing, since my copy is at home), the words "Copyright," "Copr" and the c-in-a-circle are all equivalent. Where you get into weirdness internationally is that some places allow greater use of things unless you explicitly reserve your rights, which is where the "All Rights Reserved" phrase come from. The following copyright notice *should* protect you anyplace the Berne convention is honored: Copyright 1988 by Chuq Von Rospach All Rights Reserved [note: I'm not a lawyer. This is based on my research into copyright, but don't bet your life on it. If you want *real* copyright information, go talk to a copyright lawyer....] -- Chuq Von Rospach chuq@sun.COM Delphi: CHUQ Editor/Publisher, OtherRealms Chuq Von Rospach chuq@sun.COM Delphi: CHUQ Editor/Publisher, OtherRealms