The CIA World Factbook 1992

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============================================================ ============================================================ == == == LEGAL LINKS(tm) == == 09-86 Chain 1 Link 1 == ============================================================ == Chain 1 consists of four Links: Copyright, == == Trade Secret, Trademark and Patent protection == == of computer software. == ============================================================ == Copyright (c) 1986, Gregg R. Zegarelli == == LEGAL LINKS(tm) is a trademark of == == Gregg R. Zegarelli and THE PITTSBURGH LINK == == P.O. Box 17347 Pittsburgh, PA 15235 == == (412) 243-LINK - 129/29 - Member, The Pitt-Net == ============================================================ == Always consult an attorney in order to receive == == advice concerning your particular situation. == == LEGAL LINKS provide only a general introduction. == ============================================================ == Permission is granted to copy and distribute LEGAL == == LINKS(tm) in their original form only. This notice == == may not be removed nor its contents altered. == ============================================================ ============================================================ INTRODUCTION TO SOFTWARE COPYRIGHT PROTECTION Computer bulletin board sysops and users are among the most innovative software developers in the world. Thus, it is crucial that they have an understanding about the various legal methods of protecting that work. It is a truly an unfortunate circumstance when a person spends several months developing and debugging a new program only to have someone make and distribute unauthorized copies. The purpose of Chain 1 of LEGAL LINKS(tm) is to give a general introduction of the rights and limitations associated with software protection. Link 1 of Chain 1 is an general overview of COPYRIGHT LAW as it exists for software written after 1976. WHAT IS A COPYRIGHT According the the Copyright Act of 1976, copyright protection exists for original works of authorship fixed in any tangible medium of expression which can be communicated either directly or with the aid of a machine or device. Thus, for software to secure copyright protection, it must meet a twofold test. Namely, the software must be: 1) ORIGINAL; and 2) AN EXPRESSION. Software is held by the courts to be original if it is NOT "substantially similar" to another piece of software in the eyes of a reasonable person. Because there are usually so many different ways to express the thought upon which the software is based, the courts will frequently find an infringement as to two substantially similar pieces of software even if the variable names are changed, a different language is used or the style of the author is followed. A copyright does not protect an idea itself, but the expression of an idea. For example, assume that a programmer develops an algorithm to calculate the number of days until the next leap year. Further, assume that the algorithm is completely original and that there is no other way to do that particular calculation. In such a case, copyright protection of the algorithm will NOT be granted. This is because it is believed that if only one way is available for expressing an idea, then actually that expression IS the idea. Courts will not grant an author a monopoly to an idea even if it is original. However, if there are various methods to calculate the number of days until the next leap year, then copyright protection will be granted. This situation has a different result because it is possible for another person to review the original algorithm and rewrite it through AN ORIGINAL EXPRESSION. Thus, although the second algorithm creates the same result as the first, the EXPRESSION is original. LEGAL RIGHTS GIVEN BY A COPYRIGHT Copyright protection gives an individual author certain rights which are in effect for the author's life plus 50 years. These include the rights of: 1) REPRODUCTION; 2) DERIVATION; 3) DISTRIBUTION; and 4) PERFORMANCE and DISPLAY. 1) Generally, the right of REPRODUCTION allows ONLY the copyright owner to reproduce the software. However, in the case of computer software, there are certain exceptions. Because of the unique problems associated with computer software protection, congress established the National Commission on New Technological Uses of Copyrighted Works (CONTU). As a result of CONTU's recommendations, Congress enacted into law that it is not a copyright infringement for the owner of a computer program to make a copy or adaptation of the program if: 1) the adaptation is an ESSENTIAL step in the utilization of the computer program; or 2) such new copy is for backup purposes. Although at first reading this seems to controvert the intention of copyright protection, such is not the case. For example, it is an essential step in the utilization of software to COPY the program into memory and, thus, it is not a violation of the copyright under the statute. Also, as a practical consideration, the statute allows OWNERS of software to make backup copies for archival purposes only. However, the statutory right to make backups is granted ONLY IF YOU PURCHASE A COPY OF THE SOFTWARE RATHER THAN A LICENCE TO USE THE SOFTWARE. This point is worth making clear. In cases where you purchase a COPY of the software, you have a statutory right to make backups for archival purposes. The large software companies, however, do not sell copies of the software but sell only a LICENSE to USE a copy of the software. Because the license does NOT GRANT OWNERSHIP, and disallows making backups of the software, the user's statutory right is evaded. In any case, it remains illegal to make backups of original software, sell the original copies and then retain the backups for personal use. 2) The DERIVATION right allows a copyright holder to exclude all others from deriving works based upon the original. This includes all translations, modifications, condensations, or any other form in which a work may be recast, transformed or adapted. 3) The DISTRIBUTION right allows the copyright owner to prohibit all others from distributing the work publicly. However, in light of the FIRST SALE DOCTRINE, once the copyright owner makes a sale, the new owner may treat the work as his own. This does not mean that the new owner is permitted to violate the copyright, but merely that he or she can publicly transfer the software after the first sale by the author. The sale of the program by the author, however, does not implicitly transfer the copyright - the author retains all rights in that respect. 4) The rights of PERFORMANCE and DISPLAY prevent the user from publicly performing and displaying the software over many terminals from one station. However, the software could probably be displayed to many persons through the use of one terminal. ACQUIRING A COPYRIGHT After creating an original piece of software, the developer will wish to claim the authorship to that work through a copyright. In order to properly effectuate a copyright, the general public must be put on notice of the copyright claim. This is done by a copyright notice, which serves to: inform others of the claim, identify the owner, and state the year of first publication. The contents of a copyright notice, as defined by the Copyright Office, must include: 1) the letter "C" surrounded by a CIRCLE, the word "copyright " or the abbreviation "Copr."; 2) the year of first publication; and 3) the name of the owner of the copyright. For example: "Copyright 1986 John Doe." Programmers should NOT use the letter "C" surrounded by PARENTHESES ALONE because it is not internationally acceptable. The copyright notice should be located in an area obvious to the user no matter how the program is used. Acceptable locations include: 1) on visually perceptible printouts with or near the title, 2) being displayed at the user's terminal at signon; 3) being continually displayed at he user's terminal; or 4) affixed to to the permanent receptacle used for the program. Notice of the copyright should also be placed throughout the SOURCE CODE and OBJECT CODE. Providing notice in the OBJECT CODE, however, is somewhat complex. Because object code is not humanly readable, it is necessary to include the notice as a data element within the program, so that if the program aborts, or if someone attempts to decompile it, the notice will appear in the memory dump or other listing. INFRINGEMENT After placing the appropriate notice on the software, the software may be distributed publicly, as the copyright is effective when the notice is placed on the software. TO RECEIVE COPYRIGHT PROTECTION, REGISTRATION WITH THE COPYRIGHT OFFICE IS NOT NECESSARY. HOWEVER, in the unfortunate event that someone violates a copyright, a software developer's legal rights are affected by whether or not the copyright was registered with the Copyright Office. If REGISTERED, a copyright owner may bring a court action against an alleged violator in FEDERAL DISTRICT COURT. As the PLAINTIFF in the court proceeding, the software developer will have the burden to prove that the DEFENDANT had ACCESS to the original and that there is a SUBSTANTIAL SIMILARITY between or among the pieces of software in question. The amount of damages to which the software developer may be entitled depends upon WHEN the copyright was registered. If the software is registered within THREE MONTHS after the date of first publication, then STATUTORY DAMAGES and attorney fees are available. Statutory damages amount to between $250 - $10,000. If the infringement is INTENTIONAL, statutory damages could be as large as $50,000. Statutory damages are different than actual damages in that THERE IS NO NEED TO SHOW ACTUAL LOSS. The mere fact that the DEFENDANT was proved liable is sufficient. If the software is not registered within three months of the date of first publication, statutory damages and attorney's fees are not available. The claimant must then prove ACTUAL LOSS (ie. lost profits of the copyright owner plus infringer's profits to the degree that they are not represented in the lost profits) which requires much greater effort in the fact-finding process and must be calculated with reasonable certainty. If the software was not registered before the time of the infringement, then the copyright owner (assuming that the software was published with the copyright notice) must register the copyright before a court action can be instituted. At the sake of being redundant, ownership of the copyright was effectuated at the time of publication with the copyright notice - registration is merely a statutory requirement to "get to court." REGISTERING A COPYRIGHT In order to REGISTER a copyright one must: 1) complete FORM TX; 2) pay the $10 FEE; and 3) make a DEPOSIT of the software in the Library of Congress. The deposit requirement consists of providing the first 25 pages and last 25 pages of the SOURCE CODE (or the entire program if it is less than 51 pages) reproduced in a form visually perceptible WITHOUT the aid of a machine or device, together with the page or equivalent unit containing the copyright notice. If a published user's manual or other printed documentation accompanies the computer program, two copies of the user's manual must be included. In the event that deposit of the humanly readable SOURCE CODE would disclose a trade secret (see next issue, Chain 1 Link 2) or other confidential information, the programmer may deposit the OBJECT CODE. Included with such a deposit must be written assurance that the program is copyrightable authorship. In this case, registration will proceed under the RULE OF DOUBT policy. The Rule of Doubt means that the Copyright Office believes that there is a reasonable doubt as to whether the requirements of the copyright statute have been met. Since examiners cannot read OBJECT CODE, they have no way of knowing what is represented in the deposit. This is a very new area of law, and there are few, if any, court cases which explain what affect the Rule of Doubt will have on litigation. Thus, the safest method is to deposit the SOURCE CODE. In some cases, the registrant may seek Special Relief by making a written request to the Chief, Examining Division, Copyright Office. In the event that Special Relief is granted, a registrant may be permitted to deposit blocked-out portions of the source code or deposit a combination of source and object code. CONCLUSION In conclusion, the basic question a software developer should ask is, "IS THIS SOFTWARE OF SUCH A QUALITY THAT I WOULD BE WILLING TO INITIATE A COURT PROCEEDING IF THE COPYRIGHT IS VIOLATED?" Since the primary advantage of REGISTERING the copyright is the ability to sue and recover statutory damages, the developer should be resolved that if an infringement occurs he or she would have the time and resources to initiate a court proceeding. Regardless of registration, the copyright notice should be always be placed on the software. For more information, contact the Copyright Office, Library of Congress, Washington, D.C. 20559. Phone: (202)287-9100. LEGAL LINKS(tm) ARE MERELY AN INTRODUCTION TO COPYRIGHT LAW - ONLY THE BASICS HAVE BEEN DISCUSSED. ALWAYS CONSULT YOUR ATTORNEY. LEGAL LINKS(tm) may be downloaded from THE PITTSBURGH LINK at (412)243-LINK 129/29 (Area 1 - General Files). Chain 1 Link 2 will discuss TRADE SECRET protection of computer software - it will be released shortly. This writer is a law student at Duquesne University in Pittsburgh. If I can ever be of any assistance, please call or send MAIL. If you call, please fill out the questionnaire and leave me a message. I will get back to you promptly.