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From: Jordan J. Breslow
Subject: Copyright Law
Date: 13 Feb 86 23:19:11 GMT
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
[more]
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?
[more]
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
[more]
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
[more]
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
[more]
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
[more]
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
[more]
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.
[more]
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.
[more]
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 . . . .).
[more]
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
[more]
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
[more]
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
[more]
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
[more]
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.
[more]
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.
[more]
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
[more]
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
[more]
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.
Thank you.
JORDAN J. BRESLOW
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