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The following message was extracted from the Compuserve Programming forum
on Tuesday, 2 October 1990. It would appear to be a rather important
topic for those of us in the PC software/shareware/freeware/etc community.
Please note that in the interests of clarity, several messages which are
continuations of the first message have been combined and the intervening
headers removed.
#: 41298 S1/General Info [P]
02-Oct-90 01:36:57
Sb: #Dangerous Copyright Law
Fm: Stephen Haynes 76236,3547
To: All
I am posting this long message here and on other relevant sections to warn
authors of shareware of a dangerous piece of federal legislation that has been
passed by the House of Representatives as part of the Computer Software Rental
Amendments Act of 1990. I tell you this from my position as a member of the
Proprietary Rights Committee of the Information Industry Association and an
attorney who represents West Publishing Company on intellectual property
matters. These comments do not necessarily reflect the position of the IIA
PRC, although they are also concerned that the legislation is illadvised.
Essentially, the legislation proposes to throw under a degree of federal
scrutiny and regulation all of computer "shareware." In addition, by its
legislative history (about which more is said below), the House subcommittee
that considered this legislation completely messed up what we differentiate as
"shareware" and "freeware," and these definitions are likely to follow the
legislation (if enacted) into court cases that may arise in the future.
The relevant section (Sec. 105) has been passed by the House, but is not in
the equivalent legislation pending before the Senate, so it could only be
placed in the final bill by a conference committee. This is not good law, and
should be opposed by all concerned with the free and unfettered development of
shareware.
Following is the text of the relevant portion of the proposed
statute:
SEC. 105 [of Computer Software Rental Amendments Act of
1990]. RECORDATION OF SHAREWARE.
(a) In General.--The Register of Copyrights is
authorized, upon receipt of any document designated as
pertaining to computer shareware and the fee prescribed
by section 708 of title 17, United States Code, to
record the document and return it with a certificate of
recordation.
(b) Maintenance of Records; Publication of
Information.--The Register of Copyrights is authorized
to maintain current, separate records relating to the
recordation of documents under subsection (a), and to
compile and publish at periodic intervals information
relating to such recordations. Such publications shall
be offered for sale to the public at prices based on
the cost of reproduction and distribution.
(c) Deposit of Copies in Library of Congress.--In
the case of public domain computer shareware, at the
election of the person recording a document under
subsection (a), 2 complete copies of the best edition
(as defined in section 101 of title 17, United States
Code) of the computer shareware as embodied in machine-
readable form may be deposited for the benefit of the
Machine-Readable Collections Reading Room of the
Library of Congress.
(d) Regulations.--The Register of Copyrights is
authorized to establish regulations not inconsistent
with law for the administration of the functions of the
Register under this section. All regulations
established by the Register are subject to the approval
of the Librarian of Congress.
The House of Representatives Subcommittee report (that
establishes the "legislative history" of the statute), contains
some even more unfortunate language. I have emphasized by all
caps those portions I find are most troubling:
Section 105.--Recordation of Shareware
Section 105 of the bill -- which is uncodified --
authorizes the Register of Copyrights to record
documents relating to shareware, to maintain current,
separate records relating to such documents, and TO
PUBLISH AT PERIODIC INTERVALS INFORMATION RELATING TO
SUCH RECORDATIONS. The purpose of section 105 is to
encourage individuals desiring to permit unrestricted,
or liberal, use of software they create, to file
documents to that effect with the Copyright Office so
that an effective public record will be available.
Subsection (a) authorizes the Register, upon
receipt of a document designated as pertaining to
computer shareware, to record the document and return
it with a certificate of recordation. Such a document
could include license agreements and statements that
the author attaches conditions to the use or
distribution of a computer program. Documents would be
recorded under the fee structure in effect for other
documents relating to copyright.
For purposes of this section, shareware is
computer software which meets the standard of
originality in the Copyright Act but for which the
author sets certain conditions for its use and
distribution. THE COMMITTEE IS AWARE THAT THE TERMS
"COMPUTER SHAREWARE" AND "PUBLIC DOMAIN COMPUTER
SHAREWARE" ARE NOT FOUND IN THE COPYRIGHT ACT, AND ARE
SUSCEPTIBLE OF DIFFERENT MEANINGS IN THE COMPUTER AND
LEGAL COMMUNITIES. IT IS APPARENT THAT THERE IS A LACK
OF A CENTRAL CLEARINGHOUSE FOR INFORMATION ABOUT
SHAREWARE, AND THAT SUCH A CLEARINGHOUSE WOULD AID IN
WIDER DISSEMINATION OF SUCH WORKS. The Register is
given wide latitude to promulgate practices and
procedures that fulfill the purposes of this section
and also to obtain information -- prior to the "sunset"
of this Title -- about an important manifestation of
the creative computer community. Because of the
different interpretations of the term shareware in the
computer industry, it will be left up to the individual
author submitting the document to designate it as
pertaining to shareware. Failure to so designate the
document will result in the document being recorded
with the general copyright records. COMPUTER SHAREWARE
DOES NOT INCLUDE ELECTRONIC DATA BASES, OR OTHER WORKS
OF AUTHORSHIP.
Subsection (b) provides the Register with
authority to maintain current, separate records
relating to the recordation of documents and to compile
and publish at periodic intervals information relating
to such recordations. Such publications shall be
offered to the public at prices based on the cost of
reproduction and distribution.
In order to facilitate access to shareware, Title
I of H.R. 5498 provides, in subsection (c) of section
105, that any individual recording a document
pertaining to shareware MAY ALSO DEPOSIT TWO COPIES OF
THE SHAREWARE AS EMBODIED IN MACHINE-READABLE FORM FOR
THE BENEFIT OF THE LIBRARY OF CONGRESS' MACHINE-
READABLE READING ROOM. The nature of the deposit is to
be determined by the definition of "best edition"
contained in section 101 of title 17, United States
Code. Subsection (c) does not affect the mandatory
deposit requirements of section 407 of title 17, United
States Code, for computer software that is subject to
copyright.
Subsection (d) authorizes the Register to
establish regulations in conformity with law for the
administration of the functions of the Copyright
Office. All regulations are subject to the approval of
the Librarian of Congress.
This proposed legislation is faulty or dangerous because: (1) registration
need not be by the author, which means that any person can appear able not
only to register with the Copyright Office, but deposit the shareware with the
Library of Congress; (2) the Library of Congress will thus be engaged in
activity (the collection of shareware) adequately performed by the private
sector; (3) the sale by the Copyright Office of compilations of registered
shareware is also a task better performed by the private sector; and (4) the
statute's language completely confuses or states erroneously the nature of
what it calls "public domain shareware," which we would probably refer to as
freeware.
I sincerely encourage each of you to write your Congressmen stating your
opposition to this bill, should such provisions make it out of conference, and
write your Senators stating your opposition and asking that the language not
be added to the Senate version of the Computer Software Rental Amendments Act
of 1990.
Steve Haynes
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