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- Path: spinifex!elecvax!usage!basser!munnari!uunet!seismo!sundc!pitstop!sun!amdahl!pacbell!varian!vaxwaller!lisa
- From: lisa@vaxwaller.UUCP (Lisa Breslow)
- Newsgroups: misc.legal,news.software.b,ca.general
- Subject: Copyright Law Revisited
- Message-ID: <1930@vaxwaller.UUCP>
- Date: 10 Oct 88 20:11:59 GMT
- Organization: Varian Instruments, Walnut Creek CA
- Lines: 161
- Xref: spinifex misc.legal:52 news.software.b:133
-
- 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!lisa
-