Complete Bookshop/CompleteWorkshop.iso/compute/copylaw/copyrite.inf

Text File | 1986-06-26 | 5.8 KB | 109 lines

Date: Thursday, 12 April 1984  00:58-MST
From: Ron Fowler
To:   All
Re:   INFO-COPYRIGHT AM DIGEST: APRIL 12, 1984

[ copyright (c) 1984 Ronald G. Fowler ]

There has been some controversy lately regarding the distribution of public
domain software with respect to the copyright law.  I've done some preliminary
research, and thought I'd share my findings with the group.

Specifically in question has been Irv Hoff's copyright of his MDM modem
series, especially as it relates to Ward Christensen's orig-inal work and Mark
Zeiger's extensive enhancements to the program.  Prevention of "profit-taking"
and sale of public-domain software has also been discussed.

Fundamental to securing copyright protecton is the publication of a work;
generally you may copyright unpublished work without restrict-ion (i.e., you
don't have to maintain a copyright notice in the work).  Legally, 'publishing'
is the "distribution of copies ... to the pub-lic, by sale or other transfer
of ownership, or by rental, lease or lending".  I think we can safely say that
work distributed by SIG/M and the CPMUG can be deemed legally "published".

Both the old (1909) copyright law and the new (1978) require a that a
copyright notice be placed in the work, in order to secure the copy-ight.
While the newer law addresses procedures for omission of this notice (in order
that a mistaken omission not cause loss of copyright protection) the older law
did not. Work published prior to 1 January, 1978 falls under the jurisdiction
of the older law.  In fact, Copyright Office Circular "R1" specifically
mentions this circumstance:

        "If a work was published under the copyright owner's authority before
        January 1, 1978, without a proper copyright notice, all copyright
        protection for that work was permanently lost in the United States.
        The new copyright law does not provide retroactive pro-tection for
        those works."

Now MODEM2 was published by CPMUG, without copyright notice, in 1977.  So much
for any claim poor Ward might have.

MODEM2 is therefore unquestionably in the public domain.

(Note that the terms "copyright" and "public domain" are mutually exclusive,
under the law.  "Public domain" is work without copyright, either by
expiration of an existing copyright, or by forfeiture of copyright by the
author.  Hence, a disclaimer like "Copyright (c) 1984 by Calvin C. Codehacker:
contributed to the public domain, may not be sold commercially" is a
contradiction in terms, and may very well jeopardize the author's right to
copyright.  For that reason, I *never* refer to the "public domain" in any
programs I introduce to the user community for which I desire to retain
copyright pro-tection).

(Side note: there is absolutely *nothing* to prevent a commercial in-terest
from selling public domain work, legally or ethically.  Have you ever seen an
anthology of Edgar Allen Poe, or a recently reprinted "Moby Dick", both of
which have fallen into the public domain?  Has sale of these caused any kind
of public outcry of "ripoff!"?  Think about it...)

Back to MODEM2 and MODEM7: Zeiger and Hoff's enhancements have been published
(SIG/M, I believe) after 1 January, 1978, and thus fall under the
jusrisdiction of the 1978 law, which provides for "derivative work".  A
"derivative work" is "a work based on one or more preexisting works".  This
seems to be subject to copyrights held by the author of the previous work, but
is not spelled out specifically in the material I've seen so far.  I'd hazard
to guess that Hoff and Zeiger are on pretty stable ground, though, *unless*
either has failed to actually secure the copyright by registration.  That's
where things begin to get a little shaky.

Generally, you don't have to register to claim copyright; you can reg-ister
anytime within five years of publication and still establish prima facie
evidence in court of the copyright's validatity. There is a "gotcha" though:
if the work is not registered within 3 months after publication, then no
statutory damages or attorney's fees are available to the plaintiff in an
infringement suit.  In this case, only actual damages and lost profits are
available, and in "free" distribution software, there are very little damages
indeed (perhaps if the author is a professional who receives value from the
circulation of his name in "free" software, the loss of that circulation could
constitute a damage....).

Now I think we have a clear idea of how to proceed with new "freeware":

1) Claim copyright in the published work (copyright circular "R61" suggests
   placing the notice in the program's sign-on message, if it has one. By the
   way, this pub is specific to computer software).

2) Do not fail to actually register the copyright with the Copyright office,
   within 3 month of publication.

3) Never mention the public domain in relation to your work.

With these requirements met, the software is protected to the extent that you
can confidently proceed legally against infringers, including attorney's fees
and statutory damages. Merely by virtue of your author-ship (and, of course,
your copyright).

---------

Interesting aside: if you publish work with the Copyright notice included, you
*must* deposit a copy with the Copyright office for the use of the Library of
Congress; failure to do so can result in fines and other penalties.  (Note
that there are certain exceptions and modifications to this rule for various
types of copyright works).

Also: Forms are available from the U.S. Government Copyright Office: dial
[phone].  Ask for form TX and Circulars R1 and R61.  The cheapskates
will only send you five TX's for one phone call.