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Copyright Law _J_o_r_d_a_n _J. _B_r_e_s_l_o_w _1_2_2_5 _A_l_p_i_n_e _R_o_a_d, _S_u_i_t_e _2_0_0 _W_a_l_n_u_t _C_r_e_e_k, _C_A _9_4_5_9_6 +_1 _4_1_5 _9_3_2 _4_8_2_8 I am an attorney practicing copyright law and computer law. I read a series of queries in net.legal about copyright law and was dismayed to find that people who had no idea what they were talking about were spreading misinformation over the network. Considering that the penalties for copyright infringement can in- clude $50,000.00 damages per infringed work, attorneys fees, court costs, criminal fines and imprisonment, and considering that ignorance is no excuse and innocent intent is not even a recognized defense, I cringe to see the network used as a soapbox for the ill-informed. For that reason, this article will discuss copyright law and license law as they pertain to computer software. My goal is to enable readers to determine when they should be concerned about infringing and when they can relax about it. I also want to let programmers know how to obtain copyright for their work. I'll explain the purpose of software licenses, and discuss the effect that the license has on copyright. For those of you who are programmers, I'll help you decide whether you own the programs you write on the job or your boss owns them. I will also mention trademark law and patent law briefly, in order to clarify some confusion about which is which. Incidentally, if you read this entire essay, you will be able to determine whether or not the essay is copyrighted and whether or not you can make a printout of it. This is a long article, and you may not want to read all of it. Here is an outline to help you decide what to read and what to ignore: 1. The Meaning of Copyright from the Viewpoint of the Software User 1.1 A bit of history 1.2 The meaning of _c_o_p_y_r_i_g_h_t 1.3 The meaning of _p_u_b_l_i_c _d_o_m_a_i_n 1.4 A hypothetical software purchase 1.5 Can you use copyrighted software? 1.6 Can you make a backup copy? 1.7 Licenses may change the rules __________ c Copyright 1986 Breslow, Redistributed by permission Copyright Law 1 Copyright Law 2 1.8 Can you modify the program? 1.9 Can you break the copy protection scheme? 1.10 Summary 2. Copyright Sounds Neat -- How Do I Get One? Or, How Do I Know If this Program is Copyrighted? 2.1 How do you get a copyright? 2.2 How do you lose a copyright? 2.3 How do you waste a stamp? 2.4 Do you have to register? 2.5 How copyright comes into existence 2.6 The copyright notice 2.7 Advantages of registration 2.8 A test to see if you understand this article 3. Who Owns The Program You Wrote? 3.1 Introduction 3.2 Programs written as an employee 3.3 Programs written as a contractor 4. A Brief Word about Licenses 4.1 Why a license? 4.2 Is it valid? 5.1 Trademark law explained 5.2 Patent law 6. Conclusion 1. The Meaning of Copyright from the Viewpoint of the Software User 1.1. A bit of history If you're not interested in history, you can skip this para- graph. _M_o_d_e_r_n copyright law first came into existence in 1570, by an act of Parliament called the Statute of Anne. Like most laws, it hasn't changed much since. It was written with books and pictures in mind. Parliament, lacking the foresight to predict the success of the Intel and IBM corporations, failed to consider the issue of copyrighting computer programs. At first, courts questioned whether programs could be copy- righted at all. The problem was that judges couldn't read the programs and they figured the Copyright Law was only meant to ap- ply to things humans (which arguably includes judges) could read without the aid of a machine. I saw some mythical discussion about that in some of the net.legal drivel. Let's lay that to rest: programs are copyrightable as long as there is even a minimal amount of creativity. The issue was laid to rest with the Software Act of 1980. That Act modified the Copyright Act (which is a Federal law by the way), in such a way as to make it News Version B 2.11 February 26, 1986 Copyright Law 3 clear that programs are copyrightable. The few exceptions to this rule will rarely concern anyone. The next question to arise was whether a program was copyrightable if it was stored in ROM rather than on paper. The decision in the Apple v. Franklin case laid that to rest: it is. 1.2. The meaning of _c_o_p_y_r_i_g_h_t Now, what is copyright? As it is commonly understood, it is the right to make copies of something -- or to put it the other way around, it is the right to prohibit other people from making copies. This is known as an exclusive right -- the exclusive right to _r_e_p_r_o_d_u_c_e, in the biological language of the Copyright Act -- and what most people don't know is that copyright involves not one, not two, but five exclusive rights. These are (1) the exclusive right to make copies, (2) the exclusive right to dis- tribute copies to the public, (3) the exclusive right to prepare _d_e_r_i_v_a_t_i_v_e _w_o_r_k_s (I'll explain, just keep reading), (4) the ex- clusive right to perform the work in public (this mainly applies to plays, dances and the like, but it could apply to software), and (5) the exclusive right to display the work in public (such as showing a film). 1.3. The meaning of _p_u_b_l_i_c _d_o_m_a_i_n Before we go any further, what is public domain? I saw some discussion on the net about public domain software being copy- righted. Nonsense. The phrase _p_u_b_l_i_c _d_o_m_a_i_n, when used correct- ly, means the absence of copyright protection. It means you can copy public domain software to your heart's content. It means that the author has none of the exclusive rights listed above. If someone uses the phrase _p_u_b_l_i_c _d_o_m_a_i_n to refer to _f_r_e_e_w_a_r_e (software which is copyrighted but is distributed without advance payment but with a request for a donation), he or she is using the term incorrectly. Public domain means no copyright -- no ex- clusive rights. 1.4. A hypothetical software purchase Let's look at those exclusive rights from the viewpoint of someone who has legitimately purchased a single copy of a copy- righted computer program. For the moment, we'll have to ignore the fact that the program is supposedly licensed, because the license changes things. I'll explain that later. For now, as- sume you went to Fred's Diner and Software Mart and bought a dozen eggs, cat food and a word processing program. And for now, assume the program is copyrighted. 1.5. Can you use copyrighted software? What can you do with this copyrighted software? Let's start with the obvious: can you use it on your powerful Timex PC? Is this a joke? No. Prior to 1980, my answer might have been No, you can't use it! News Version B 2.11 February 26, 1986 Copyright Law 4 People actually pay me for advice like that! Well think: you take the floppy disk out of the zip lock baggy, insert it in drive A and load the program into RAM. What have you just done? You've made a copy in RAM -- in legalese, you've reproduced the work, in violation of the copyright owner's exclusive right to reproduce. (I better clarify something here: the copyright own- er is the person or company whose name appears in the copyright notice on the box, or the disk or the first screen or wherever. It may be the person who wrote the program, or it may be his boss, or it may be a publishing company that bought the rights to the program. But in any case, it's not you. When you buy a copy of the program, you do not become the copyright owner. You just own one copy.) Anyway, loading the program into RAM means making a copy. The Software Act of 1980 addressed this absurdity by allowing you to make a copy if the copy "is created as an essential step in the utilization of the computer program in conjunction with a machine and ... is used in no other manner ...." By the way, somebody tell me what _a _m_a_c_h_i_n_e means. If you connect 5 PC's on a network is that _a _m_a_c_h_i_n_e or _s_e_v_e_r_a_l _m_a_c_h_i_n_e_s? A related ques- tion is whether or not running software on a network constitutes a performance. The copyright owner has the exclusive right to do that, remember? 1.6. Can you make a backup copy? OK, so you bought this copyrighted program and you loaded it into RAM or onto a hard disk without the FBI knocking on your door. Now can you make a backup copy? YES. The Software Act also provided that you can make a backup copy, provided that it "is for archival purposes only ...." What you cannot do, howev- er, is give the archive copy to your friend so that you and your pal both got the program for the price of one. That violates the copyright owner's exclusive right to distribute copies to the public. Get it? You can, on the other hand, give both your ori- ginal and backup to your friend -- or sell it to him, or lend it to him, as long as you don't retain a copy of the program you are selling. Although the copyright owner has the exclusive right to distribute (sell) copies of the program, that right only applies to the first sale of any particular copy. By analogy, if you buy a copyrighted book, you are free to sell your book to a friend. The copyright owner does not have the right to control resales. 1.7. Licenses may change the rules At this point, let me remind you that we have assumed that the program you got at the store was sold to you, not licensed to you. Licenses may change the rules. 1.8. Can you modify the program? Now, you're a clever programmer, and you know the program could run faster with some modifications. You could also add News Version B 2.11 February 26, 1986 Copyright Law 5 graphics and an interactive mode and lots of other stuff. What does copyright law say about your plans? Well ... several dif- ferent things, actually. First, recall that the copyright owner has the exclusive right to make derivative works. A derivative work is a work based on one or more preexisting works. It's easy to recognize derivative works when you think about music or books. If a book is copyrighted, derivative works could include a screenplay, an abridged edition, or a translation into another language. Derivative works of songs might be new arrangements (like the jazz version of Love Potion Number 9), a movie soundtrack, or a written transcription, or a _l_o_n_g _v_e_r_s_i_o_n, (such as the fifteen minute version of "Wipe Out" with an extended drum solo for dance parties). In my opinion, you are making a deriva- tive work when you take the store-bought word processor and modi- fy it to perform differently. The same would be true if you _t_r_a_n_s_l_a_t_e_d a COBOL program into BASIC. Those are copyright in- fringements -- you've horned in on the copyright owner's ex- clusive right to make derivative works. There is, however, some breathing room. The Software Act generously allows you to _a_d_a_p_t the code if the adaptation "is created as an essential step in the utilization of the computer program in conjunction with a machine ...." For example, you might have to modify the code to make it compatible with your machine. 1.9. Can you break the copy protection scheme? Moving right along, let's assume your store bought program is copy protected, and you'd really like to make a backup copy. You know this nine-year-old whiz who can crack any copy- protection scheme faster than you can rearrange a Rubix cube. Is there a copyright violation if he succeeds? There's room to ar- gue here. When you try to figure out if something is an infringe- ment, ask yourself, what exclusive right am I violating? In this case, not the right to make copies, and not the right to distri- bute copies. Public performance and display have no relevance. So the key question is whether you are making a _d_e_r_i_v_a_t_i_v_e _w_o_r_k. My answer to that question is, "I doubt it." On the other hand, I also doubt that breaking the protection scheme was "an essen- tial step" in using the program in conjunction with a machine. It might be a "fair use," but that will have to wait for another article. Anyone interested in stretching the limits of the "fair use" defense should read the Sony _B_e_t_a_m_a_x case. 1.10. Summary Let me summarize. Copyright means the copyright owner has the exclusive right to do certain things. Copyright infringement means you did one of those exclusive things (unless you did it within the limits of the Software Act, i.e., as an essential step ....). News Version B 2.11 February 26, 1986 Copyright Law 6 2. Copyright Sounds Neat -- How Do I Get One? Or, How Do I Know if this Program is Copyrighted? 2.1. How do you get a copyright? If you've written an original program, what do you have to do to get a copyright? Nothing. You already have one. 2.2. How do you lose a copyright? If you've written an original program, what do you have to do to lose your copyright protection? Give copies away without the copyright notice. 2.3. How do you waste a stamp? If you mail the program to yourself in a sealed envelope, what have you accomplished? You've wasted a stamp and an envelope and burdened the postal system unnecessarily. 2.4. Do you have to register? Do you have to register your program with the U.S. Copyright Office? No, but it's a damn good idea. 2.5. How copyright comes into existence Copyright protection (meaning the five exclusive rights) comes into existence the moment you _f_i_x your program in a _t_a_n_g_i_- _b_l_e _m_e_d_i_u_m. That means write it down, or store it on a floppy disk, or do something similar. Registration is optional. The one thing you must do, however, is protect your copyright by in- cluding a copyright notice on every copy of every program you sell, give away, lend out, etc. If you don't, someone who hap- pens across your program with no notice on it can safely assume that it is in the public domain (unless he actually knows that it is not). 2.6. The copyright notice The copyright notice has three parts. The first can be ei- ther a c with a circle around it (c), or the word Copyright or the abbreviation Copr. The c with a circle around it is prefer- able, because it is recognized around the world; the others are not. That's incredibly important. Countries around the world have agreed to recognize and uphold each others' copyrights, but this world-wide protection requires the use of the c in a circle. On disk labels and program packaging, use the encircled c. Un- fortunately, computers don't draw small circles well, so program- mers have resorted to a c in parentheses: (c). Too bad. That has no legal meaning. When you put your notice in the code and on the screen, use Copyright or Copr. if you can't make a cir- cle. News Version B 2.11 February 26, 1986 Copyright Law 7 The second part of the notice is the "year of first publica- tion of the work." _P_u_b_l_i_c_a_t_i_o_n doesn't mean distribution by Os- borne Publishing Co. It means distribution of copies of the pro- gram to the public "by sale or other transfer of ownership, or by rental, lease, or lending." So when you start handing out or selling copies of your precious code, you are publishing. Publi- cation also takes place when you merely OFFER to distribute copies to a group for further distribution. Your notice must in- clude the year that you first did so. The third part of the notice is the name of the owner of the copyright. Hopefully, that's you, in which case your last name will do. If your company owns the program -- a legal issue which I will address later in this article -- the company name is ap- propriate. Where do you put the notice? The general idea is to put it where people are likely to see it. Specifically, if you're dis- tributing a human-readable code listing, put it on the first page in the first few lines of code, and hard code it so that it ap- pears on the title screen, or at sign-off, or continuously. If you're distributing machine-readable versions only, hard code it. As an extra precaution, you should also place the notice on the gummed disk label or in some other fashion permanently attached to the storage medium. 2.7. Advantages of registration Now, why register the program? If no one ever rips off your program, you won't care much about registration. If someone does rip it off, you'll kick yourself for not having registered it. The reason is that if the program is registered before the in- fringement takes place, you can recover some big bucks from the infringer, called statutory damages, and the court can order the infringer to pay your attorneys fees. Registration only costs $10.00, and it's easy to do yourself. The only potential disad- vantage is the requirement that you deposit the first and last 25 pages of your source code, which can be inspected (but not copied) by members of the public. 2.8. A test to see if you understand this article Now, someone tell me this: is this article copyrighted? Can you print it? 3. Who Owns The Program You Wrote? 3.1. Introduction The starting point of this analysis is that if you wrote the program, you are the author, and copyright belongs to the author. HOWEVER, that can change instantly. There are two common ways for your ownership to shift to someone else: first, your program might be a "work for hire." Second, you might sell or assign News Version B 2.11 February 26, 1986 Copyright Law 8 your _r_i_g_h_t_s in the program, which for our purposes means the copyright. 3.2. Programs written as an employee Most of the programs which you write at work, if not all of them, belong to your employer. That's because a program prepared by an employee within the scope of his or her employment is a "work for hire," and the employer is considered the _a_u_t_h_o_r. This is more or less automatic if you are an employee -- no written agreement is necessary to make your employer the copyright owner. By contrast, if you can convince your employer to let you be the copyright owner, you must have that agreement in writing. By the way, before you give up hope of owning the copyright to the program you wrote at work, figure out if you are really an employee. That is actually a complex legal question, but I can tell you now that just because your boss says you are an employee doesn't mean that it's so. And remember that if you created the program outside the _s_c_o_p_e of your job, the program is not a "work for hire." Finally, in California and probably elsewhere, the state labor law provides that employees own products they create on their own time, using their own tools and materials. Employ- ment contracts which attempt to make the employer the owner of those off-the-job _i_n_v_e_n_t_i_o_n_s are void, at least in sunny Califor- nia. 3.3. Programs written as a contractor Wait a minute: I'm an independent contractor to Company X, not an employee. I come and go as I please, get paid by the hour with no tax withheld, and was retained to complete a specific project. I frequently work at home with my own equipment. Is the program I'm writing a "work for hire," owned by the Company? Maybe, maybe not. In California, this area is full of landmines for employers, and gold for contractors. A contractor's program is not a "work for hire," and is not owned by the company, unless (1) there is a written agreement between the company and the contractor which says that it is, and (2) the work is a _c_o_m_m_i_s_s_i_o_n_e_d _w_o_r_k. A _c_o_m_m_i_s_s_i_o_n_e_d _w_o_r_k is one of the following: (a) a contribution to a _c_o_l_l_e_c_t_i_v_e _w_o_r_k, (b) an audiovisual work (like a movie, and maybe like a video game), (c) a translation, (d) a compilation, (e) an instructional text, (f) a test or answer to a test, or (g) an atlas. I know you must be tired of definitions, but this is what the real legal world is made of. An example of a collective work is a book of poetry, with poems contributed by various authors. A piece of code which is incorporated into a large program isn't a contribution to a collective work, but a stand-alone program which is packaged and sold with other stand-alone programs could be. So where are we? If you are a contract programmer, not an employee, and your program is a _c_o_m_m_i_s_s_i_o_n_e_d _w_o_r_k, and you have a News Version B 2.11 February 26, 1986 Copyright Law 9 written agreement that says that the program is a "work for hire" owned by the greedy company, who owns the program? That's right, the company. But guess what? In California and elsewhere the company just became your employer! This means that the company must now provide worker's compensation benefits for you AND UNEM- PLOYMENT INSURANCE. 4. A Brief Word About Licenses. 4.1. Why a license? When you get software at the local five and dime, the manufacturer claims that you have a license to use that copy of the program. The reason for this is that the manufacturer wants to place more restrictions on your use of the program than copy- right law places. For example, licenses typically say you can only use the program on a single designated CPU. Nothing in the copyright law says that. Some licenses say you cannot make an archive copy. The copyright law says you can, remember? But if the license is a valid license, now you can't. You can sell or give away your copy of a program if you purchased it, right? That's permitted by copyright law, but the license may prohibit it. The more restrictive terms of the license will apply instead of the more liberal copyright rules. 4.2. Is it valid? Is the license valid? This is hotly debated among lawyers. (What isn't? We'll argue about the time of day.) A few states have passed or will soon pass laws declaring that they are valid. A few will go the other way. Federal legislation is unlikely. My argument is that at the consumer level, the license is not binding because there is no true negotiation (unless a state law says it is binding), but hey that's just an argument and I'm not saying that that's the law. In any case, I think businesses which buy software will be treated differently in court than con- sumers. Businesses should read those licenses and negotiate with the manufacturer if the terms are unacceptable. 5. I Have A Neat Idea. Can I Trademark It? What About patent? 5.1. Trademark law explained Sorry, no luck. Trademark law protects names: names of products and names of services. (Note that I did not say names of companies. Company names are not trademarkable.) If you buy a program that has a trademarked name, all that means is that you can't sell your own similar program under the same name. It has nothing to do with copying the program. 5.2. Patent Law Patent law can apply to computer programs, but it seldom does. The main reasons it seldom applies are practical: the News Version B 2.11 February 26, 1986 Copyright Law 10 patent process is too slow and too expensive to do much good in the software world. There are also considerable legal hurdles to overcome in order to obtain a patent. If, by chance, a program is patented, the patent owner has the exclusive right to make, use or sell it for 17 years. 6. CONCLUSION I know this is a long article, but believe it or not I just scratched the surface. Hopefully, you'll find this information useful, and you'll stop passing along myths about copyright law. If anyone needs more information, I can be reached at the address on the first page. Sorry, but I do not usually have access to the network, so you can't reach me there. Thank you. JORDAN J. BRESLOW News Version B 2.11 February 26, 1986