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Copyrighting Public Domain Programs
by
June B. Moore, JD
Member, California State Bar
32 Salinas Avenue
San Anselmo CA 94960
(415) 456-5889
Also: Marin RBBS
(415) 383-0473
There is concern about the copyright status of the programs
provided by innovative and diligent members of the CP/M Users
Group to the Group with the understanding, explicitly stated
or otherwise, that the programs were contributed to the
"public domain."
The term "public domain" means, from a legal point of view, a
program or other work that does not have copyright protection.
The indiscriminate use of the word confuses the copyright
issues. A work disclosed to a specific group of people for a
limited purpose is not necessarily "public domain" software.
A new federal copyright law went into effect on January 1,
1978, which complicates the following discussion for that
software written and/or contributed prior to that date. I
will start with a discussion of the law as it applies now and
to programs written after January 1, 1978. The new law is
Title 17, U.S. Code. Any written material (including computer
programs) fixed in a tangible form (written somewhere, ie a
printout) is considered copyrighted without any additional
action on the part of the author. Thus, it is not necessary
that a copy of the program be deposited with the Copyright
Office in Washington for the program to be protected as
copyrighted.
A contribution of a program to the members of the public (CP/M
Users Group) for their noncommercial use constitutes a license
for that purpose and that purpose only. It does not destroy
the programmers rights in the copyright to the program.
HOWEVER, the government does not enforce the programmers
rights. A copyright is a property right, just like the right
you have in the house you own. If someone trespasses on your
property, the cops may come and put the fellow in jail, but
they will not stop him from doing it again nor will they
procure compensation for any damage the intruder may have done
to your property. You have to do that yourself by going to
court. So it is with copyrights. In order to prevent anyone
from selling your programs you must ask a court (federal) to
stop him by an injunction and to give you damages for the
injury he has done to you by selling the program.
Going to court requires that the program be registered with
the Copyright Office in Washington,D.C. The fee is $10.
The government will prosecute CRIMINAL copyright
infringements, such as where someone simply copies (as in
copying an audio or videotape) for profit, and when the
government can show criminal intent (ie, knowing violation of
the law or fraud in the acts of the copier). This is not done
very frequently except in the case of wholesale audio and
video taping pirates.
The copyright law has a concept known as a "derivative work."
A derivative work is one which is based on a work already
entitled to and protected by copyright. The original author
of a work has the sole rights to "derivative" works derived
from his work. He can authorize (license) others to prepare
derivative works from his work, as in the case of a programmer
of a Users Group program who says "If anyone fixes this for a
DCHayes MM-100, let me know."
I suspect that many of the programs contributed to the Group
and their modifications fall within this category of license -
that is, users have been allowed to prepare derivative works.
However, the original author does not lose his original
copyright! And all the derivative works made using the
original are dependent on the continuation of the license
except as to the parts added by the author of the derivative
works. A simple explanation might help: A program provides
for generating data showing ratios for sales to inventory
turnovers (I know the example is silly), and the output is
simply a bunch of numbers. The second programmer decides to
enhance the program by turning the numbers into some kind of
chart or graph. The program that generated the numbers is
protected as to the original author. The output formatting
ONLY is protected as a license derivative work to the second
programmer.
The restriction placed on the programs in recent years
limiting use to individuals on their personal machines and
denying use of a program for commercial purposes is probably a
valid restriction of the license granted in the CP/M Users
Group Library. It constitutes fair warning to all who would
lift the program and attempt to convert it to commercial
purposes that such use is not licensed. It is not clear that
such restriction applies automatically to earlier donations to
the Group, unless there is something explicit in the
documentation that accompanies the work itself when it is
distributed.
In many instances, the programs donated prior to 1978 were not
copyrighted (that is, contained no copyright notice and were
not registered with the Copyright Office). The status of
these programs is not clear, although a case can be made that
they were initially distributed only to paid-up members of the
CP/M Users Group. My documentation from the Users Group,
which is undated but which is postmarked June 13, 1978, states
"The material [donations of programs] is received by the Group
with the understanding that the contributor is authorized to
make it available to hobbiests for their individual non-
commercial use.....Members receiving material are free and
encouraged to share it with other hobbiests for their
individual non- commercial use." The membership information
included a request for any member's knowledge of persons
violating the non-commercial restriction on the programs
distributed. A membership fee of $4 was charged for 1978 as a
prerequisite to receiving material.
This limitation on the prospective use of a program obtained
from the group indicates that the distribution was limited to
non-commercial users. Pre-1/1/78 software that was not
automatically copyrighted and did not contain a copyright
notice could be protected only under state laws in existence
at that time. The state laws varied considerably but
generally the rule is that, if the work was not distributed
willy-nilly to the public without restriction, the state law
protected the work even if the federal law niceties were not
complied with. The problem is whether the restrictions of the
CP/Users Group distribution were sufficient limitations on the
"publication" of the program. Publication destroys a state
law copyright, making the work free to all. "Publication"
here means making it available to the public at large, even
though restrictions were placed on the initial disclosure of
the program. That is something only the court or jury
actually hearing the case can decide and may well turn on
facts not available to me. For example, was any real effort
made to prevent computer stores from distributing the programs
to their customers who were not members of the Group? Were
the non-commercial use limitations explained to those
customers? To the computer stores?
One other concern has been expressed by some program authors,
those authors who have desired not to have their programs
modified but whose programs have nonetheless been modified.
Referring to the discussion above about the limitations on use
of contributed programs, if the limitation did not authorize
anything but "use" of the program, then the modifications
constituted "derivative" works that were not authorized.
This, unfortunately, would be a very tricky thing to prove,
and it would have to be proved - how did the parties
understand the authorization to use the programs (ie, was
modification prevented but noncommercial use allowed?). If
there was an implied license to modify (for example, because
the program was included with other programs in which
modifications were explicitly authorized), it might be very
difficult to prove infringement under either the state or
federal law, depending on which was applicable.
It should be clear from the above, however, that modifications
of programs entitled to copyright protection are infringements
if they are not authorized by the owner of the copyright in
the original program. The problem is in the proof of lack of
authorization.
Since January 1, 1978, all programs are protected by federal
copyright laws without regard to copyright notice or
registration with the Copyright Office and the state laws no
longer apply. The federal law "preempted" the state laws on
that date. But the federal rules apply across the board ONLY
to works first "fixed" or "written" after that date. However,
improvements or modifications in one's own program can qualify
for federal copyright protection under the new law and perhaps
those interested or affected by the problem should make formal
registration of their works as well as including the copyright
notice somewhere in the program.
----------------------------------
It is obvious that most volunteer programmers do not have the
finances or time, or inclination for that matter, to pursue a
legal remedy in the courts. At the same time, they do not
want the software they authored to be used by others for
commercial gain without some control over its use.
I suggest that microcomputer software authors nation-wide form
an organization similar to that of ASCAP or BMI, although on a
smaller scale, to monitor improper uses of software donated to
the hobbiest for personal use. Only through concentrating the
efforts and power of all authors can real protection be
obtained. Otherwise, the unscrupulous vendor is going to take
his chances that the individual programmer will not or can not
defend his copyright.
Such a group might be formed with the support of an active
computer group like the NJ Amateur Computer Group or the
Homebrew Computer Club in California. Or it could be
established independently if there were sufficient interest
and an organizer could be found to do the necessary paperwork,
collect the dues needed to provide a war chest, and hire the
attorneys and other persons necessary. It wouldn't have to be
a full time job for anyone but it would have to be more than
volunteer activity.
My suggestion appeared (anonymously) in an article in the July
1982 Microcomputing. I am not interested in doing it,
although I would cooperate with any efforts along these lines
with counsel and advice.
I suggest, however, that an early attack, which might include
programmers for profit whose programs are slightly modified by
fly-by-night vendors without compensation, will establish the
principles necessary to deter future invasions of your
copyrights.
June B. Moore, JD
Member, California State Bar
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