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1.1 root 1: .ds .f copyright.mn
2: .ds h0 "Copyright Law
3: .ds h1
4: .ds h2 %
5: .ds f0 "\*(vr
6: .ds f1
7: .ds f2 "February 26, 1986
8: .mt
9: Copyright Law
10: .au
11: Jordan J. Breslow
12: .ai
13: 1225 Alpine Road, Suite 200
14: Walnut Creek, CA 94596
15: +1 415 932 4828
16: .bt
17: .fn
18: \(co Copyright 1986 Breslow, Redistributed by permission
19: .ef
20: .pg
21: I am an attorney practicing copyright law and computer
22: law. I read a series of queries in net.legal about
23: copyright law and was dismayed to find that people who
24: had no idea what they were talking about were spreading
25: misinformation over the network. Considering that the
26: penalties for copyright infringement can include
27: $50,000.00 damages per infringed work, attorneys fees,
28: court costs, criminal fines and imprisonment, and
29: considering that ignorance is no excuse and innocent
30: intent is not even a recognized defense, I cringe to see
31: the network used as a soapbox for the ill-informed. For
32: that reason, this article will discuss copyright law and
33: license law as they pertain to computer software.
34: .pg
35: My goal is to enable readers to determine when they
36: should be concerned about infringing and when they can
37: relax about it. I also want to let programmers know how
38: to obtain copyright for their work. I'll explain the
39: purpose of software licenses, and discuss the effect
40: that the license has on copyright. For those of you who
41: are programmers, I'll help you decide whether you own
42: the programs you write on the job or your boss owns
43: them. I will also mention trademark law and patent law
44: briefly, in order to clarify some confusion about which
45: is which. Incidentally, if you read this entire essay,
46: you will be able to determine whether or not the essay
47: is copyrighted and whether or not you can make a
48: printout of it.
49: .pg
50: This is a long article, and you may not want to
51: read all of it. Here is an outline to help you decide
52: what to read and what to ignore:
53: .nf
54: .si 10
55: 1. The Meaning of Copyright from the Viewpoint of the Software User
56: 1.1 A bit of history
57: 1.2 The meaning of \f2copyright\fP
58: 1.3 The meaning of \f2public domain\fP
59: 1.4 A hypothetical software purchase
60: 1.5 Can you use copyrighted software?
61: 1.6 Can you make a backup copy?
62: 1.7 Licenses may change the rules
63: 1.8 Can you modify the program?
64: 1.9 Can you break the copy protection scheme?
65: 1.10 Summary
66: .sp
67: 2. Copyright Sounds Neat -- How Do I Get One? Or, How Do I Know If
68: this Program is Copyrighted?
69: 2.1 How do you get a copyright?
70: 2.2 How do you lose a copyright?
71: 2.3 How do you waste a stamp?
72: 2.4 Do you have to register?
73: 2.5 How copyright comes into existence
74: 2.6 The copyright notice
75: 2.7 Advantages of registration
76: 2.8 A test to see if you understand this article
77: .sp
78: 3. Who Owns The Program You Wrote?
79: 3.1 Introduction
80: 3.2 Programs written as an employee
81: 3.3 Programs written as a contractor
82: .sp
83: 4. A Brief Word about Licenses
84: 4.1 Why a license?
85: 4.2 Is it valid?
86: .sp
87: .5 I Have a Neat Idea. Can I Trademark it? What about a Patent?
88: 5.1 Trademark law explained
89: 5.2 Patent law
90: .sp
91: 6. Conclusion
92: .ei
93: .fi
94: .sp 2
95: .hn 1
96: The Meaning of Copyright from the Viewpoint of the Software User
97: .hn 2
98: A bit of history
99: .pg
100: If you're not interested in history, you can
101: skip this paragraph.
102: .i Modern
103: copyright law first came
104: into existence in 1570, by an act of Parliament called
105: the Statute of Anne. Like most laws, it hasn't changed
106: much since. It was written with books and pictures in
107: mind. Parliament, lacking the foresight to predict the
108: success of the Intel and IBM corporations, failed to
109: consider the issue of copyrighting computer programs.
110: .pg
111: At first, courts questioned whether programs could be
112: copyrighted at all. The problem was that judges
113: couldn't read the programs and they figured the
114: Copyright Law was only meant to apply to things humans
115: (which arguably includes judges) could read without the
116: aid of a machine. I saw some mythical discussion about
117: that in some of the net.legal drivel. Let's lay that to
118: rest: programs are copyrightable as long as there is
119: even a minimal amount of creativity. The issue was laid
120: to rest with the Software Act of 1980. That Act
121: modified the Copyright Act (which is a Federal law by
122: the way), in such a way as to make it clear that
123: programs are copyrightable. The few exceptions to this
124: rule will rarely concern anyone. The next question to
125: arise was whether a program was copyrightable if it was
126: stored in ROM rather than on paper. The decision in
127: the Apple v. Franklin case laid that to rest: it is.
128: .hn 2
129: The meaning of \f2copyright\fP
130: .pg
131: Now, what is copyright? As it is commonly
132: understood, it is the right to make copies of something
133: -- or to put it the other way around, it is the right to
134: prohibit other people from making copies. This is known
135: as an exclusive right -- the exclusive right to
136: .i reproduce ,
137: in the biological language of the Copyright
138: Act -- and what most people don't know is that copyright
139: involves not one, not two, but five exclusive rights.
140: These are (1) the exclusive right to make copies, (2)
141: the exclusive right to distribute copies to the public,
142: (3) the exclusive right to prepare
143: .i "derivative works"
144: (I'll explain, just keep reading), (4) the exclusive
145: right to perform the work in public (this mainly applies
146: to plays, dances and the like, but it could apply to
147: software), and (5) the exclusive right to display the
148: work in public (such as showing a film).
149: .hn 2
150: The meaning of \f2public domain\fP
151: .pg
152: Before we go any further, what is public
153: domain? I saw some discussion on the net about public
154: domain software being copyrighted. Nonsense. The
155: phrase
156: .i "public domain,"
157: when used correctly, means the
158: absence of copyright protection. It means you can copy
159: public domain software to your heart's content. It
160: means that the author has none of the exclusive rights
161: listed above. If someone uses the phrase
162: .i "public domain"
163: to refer to
164: .i freeware
165: (software which is copyrighted but is distributed without advance payment
166: but with a request for a donation), he or she is using
167: the term incorrectly. Public domain means no copyright
168: -- no exclusive rights.
169: .hn 2
170: A hypothetical software purchase
171: .pg
172: Let's look at those exclusive rights from the
173: viewpoint of someone who has legitimately purchased a
174: single copy of a copyrighted computer program. For the
175: moment, we'll have to ignore the fact that the program
176: is supposedly licensed, because the license changes
177: things. I'll explain that later. For now, assume you
178: went to Fred's Diner and Software Mart and bought a
179: dozen eggs, cat food and a word processing program. And
180: for now, assume the program is copyrighted.
181: .hn 2
182: Can you use copyrighted software?
183: .pg
184: What can you do with this copyrighted
185: software? Let's start with the obvious: can you use it
186: on your powerful Timex PC? Is this a joke? No. Prior
187: to 1980, my answer might have been No, you can't use it!
188: .pg
189: People actually pay me for advice like that! Well
190: think: you take the floppy disk out of the zip lock
191: baggy, insert it in drive A and load the program into
192: RAM. What have you just done? You've made a copy in
193: RAM -- in legalese, you've reproduced the work, in
194: violation of the copyright owner's exclusive right to
195: reproduce. (I better clarify something here: the
196: copyright owner is the person or company whose name
197: appears in the copyright notice on the box, or the disk
198: or the first screen or wherever. It may be the person
199: who wrote the program, or it may be his boss, or it may
200: be a publishing company that bought the rights to the
201: program. But in any case, it's not you. When you buy a
202: copy of the program, you do not become the copyright
203: owner. You just own one copy.)
204: .pg
205: Anyway, loading the program into RAM means
206: making a copy. The Software Act of 1980 addressed this
207: absurdity by allowing you to make a copy if the copy \*(lqis
208: created as an essential step in the utilization of the
209: computer program in conjunction with a machine and ...
210: is used in no other manner ....\*(rq By the way,
211: somebody tell me what
212: .i "a machine"
213: means. If you connect
214: 5 PC's on a network is that
215: .i "a machine"
216: or
217: .i "several machines" ?
218: A related question is whether or not running
219: software on a network constitutes a performance. The
220: copyright owner has the exclusive right to do that,
221: remember?
222: .hn 2
223: Can you make a backup copy?
224: .pg
225: OK, so you bought this copyrighted program
226: and you loaded it into RAM or onto a hard disk without
227: the FBI knocking on your door. Now can you make a
228: backup copy?
229: .b YES .
230: The Software Act also provided that
231: you can make a backup copy, provided that it \*(lqis for
232: archival purposes only ....\*(rq What you cannot do,
233: however, is give the archive copy to your friend so that
234: you and your pal both got the program for the price of
235: one. That violates the copyright owner's exclusive
236: right to distribute copies to the public. Get it? You
237: can, on the other hand, give both your original and
238: backup to your friend -- or sell it to him, or lend it
239: to him, as long as you don't retain a copy of the
240: program you are selling. Although the copyright owner
241: has the exclusive right to distribute (sell) copies of
242: the program, that right only applies to the first sale
243: of any particular copy. By analogy, if you buy a
244: copyrighted book, you are free to sell your book to a
245: friend. The copyright owner does not have the right to
246: control resales.
247: .hn 2
248: Licenses may change the rules
249: .pg
250: At this point, let me remind you that we have
251: assumed that the program you got at the store was sold
252: to you, not licensed to you. Licenses may change the
253: rules.
254: .hn 2
255: Can you modify the program?
256: .pg
257: Now, you're a clever programmer, and you know
258: the program could run faster with some modifications.
259: You could also add graphics and an interactive mode and
260: lots of other stuff. What does copyright law say about
261: your plans? Well ... several different things,
262: actually. First, recall that the copyright owner has
263: the exclusive right to make derivative works. A
264: derivative work is a work based on one or more
265: preexisting works. It's easy to recognize derivative
266: works when you think about music or books. If a book is
267: copyrighted, derivative works could include a
268: screenplay, an abridged edition, or a translation into
269: another language. Derivative works of songs might be
270: new arrangements (like the jazz version of Love Potion
271: Number 9), a movie soundtrack, or a written
272: transcription, or a
273: .i "long version" , (such as the fifteen
274: minute version of \*(lqWipe Out\*(rq with an extended drum solo
275: for dance parties). In my opinion, you are making a
276: derivative work when you take the store-bought word
277: processor and modify it to perform differently. The
278: same would be true if you
279: .i translated
280: a COBOL program
281: into BASIC. Those are copyright infringements -- you've
282: horned in on the copyright owner's exclusive right to
283: make derivative works. There is, however, some
284: breathing room. The Software Act generously allows you
285: to
286: .i adapt
287: the code if the adaptation \*(lqis created as an
288: essential step in the utilization of the computer
289: program in conjunction with a machine ....\*(rq For
290: example, you might have to modify the code to make it
291: compatible with your machine.
292: .hn 2
293: Can you break the copy protection scheme?
294: .pg
295: Moving right along, let's assume your store
296: bought program is copy protected, and you'd really like
297: to make a backup copy. You know this nine-year-old whiz
298: who can crack any copy-protection scheme faster than you
299: can rearrange a Rubix cube. Is there a copyright
300: violation if he succeeds? There's room to argue here.
301: When you try to figure out if something is an
302: infringement, ask yourself, what exclusive right am I
303: violating? In this case, not the right to make copies,
304: and not the right to distribute copies. Public
305: performance and display have no relevance. So the key
306: question is whether you are making a
307: .i "derivative work" .
308: My answer to that question is, \*(lqI doubt it.\*(rq On the
309: other hand, I also doubt that breaking the protection
310: scheme was \*(lqan essential step\*(rq in using the program in
311: conjunction with a machine. It might be a \*(lqfair use,\*(rq
312: but that will have to wait for another article. Anyone
313: interested in stretching the limits of the \*(lqfair use\*(rq
314: defense should read the Sony
315: .i Betamax
316: case.
317: .hn 2
318: Summary
319: .pg
320: Let me summarize. Copyright means the
321: copyright owner has the exclusive right to do certain
322: things. Copyright infringement means you did one of
323: those exclusive things (unless you did it within the
324: limits of the Software Act, i.e., as an essential step ....).
325: .hn 1
326: Copyright Sounds Neat -- How Do I Get One? Or, How Do I Know if this Program is Copyrighted?
327: .hn 2
328: How do you get a copyright?
329: .pg
330: If you've written an original program, what do you have to do to get a
331: copyright? Nothing. You already have one.
332: .hn 2
333: How do you lose a copyright?
334: .pg
335: If you've written an original
336: program, what do you have to do to lose your copyright
337: protection? Give copies away without the copyright
338: notice.
339: .hn 2
340: How do you waste a stamp?
341: .pg
342: If you mail the program to yourself
343: in a sealed envelope, what have you accomplished?
344: You've wasted a stamp and an envelope and burdened the
345: postal system unnecessarily.
346: .hn 2
347: Do you have to register?
348: .pg
349: Do you have to register your program
350: with the U.S. Copyright Office? No, but it's a damn
351: good idea.
352: .hn 2
353: How copyright comes into existence
354: .pg
355: Copyright protection (meaning the five
356: exclusive rights) comes into existence the moment you
357: .i fix
358: your program in a
359: .i "tangible medium" .
360: That means
361: write it down, or store it on a floppy disk, or do
362: something similar. Registration is optional. The one
363: thing you must do, however, is protect your copyright by
364: including a copyright notice on every copy of every
365: program you sell, give away, lend out, etc. If you
366: don't, someone who happens across your program with no
367: notice on it can safely assume that it is in the public
368: domain (unless he actually knows that it is not).
369: .hn 2
370: The copyright notice
371: .pg
372: The copyright notice has three parts. The
373: first can be either a c with a circle around it (\(co), or the
374: word
375: .b Copyright
376: or the abbreviation
377: .b Copr.
378: The c
379: with a circle around it is preferable, because it is
380: recognized around the world; the others are not. That's
381: incredibly important. Countries around the world have
382: agreed to recognize and uphold each others' copyrights,
383: but this world-wide protection requires the use of the c
384: in a circle. On disk labels and program packaging, use
385: the encircled c. Unfortunately, computers don't draw
386: small circles well, so programmers have resorted to a c
387: in parentheses: (c). Too bad. That has no legal
388: meaning. When you put your notice in the code and on
389: the screen, use
390: .b Copyright
391: or
392: .b Copr.
393: if you can't make a circle.
394: .pg
395: The second part of the notice is the \*(lqyear
396: of first publication of the work.\*(rq
397: .i Publication
398: doesn't mean distribution by Osborne Publishing Co. It
399: means distribution of copies of the program to the
400: public \*(lqby sale or other transfer of ownership, or by
401: rental, lease, or lending.\*(rq So when you start handing
402: out or selling copies of your precious code, you are
403: publishing. Publication also takes place when you
404: merely OFFER to distribute copies to a group for further
405: distribution. Your notice must include the year that
406: you first did so.
407: .pg
408: The third part of the notice is the name of
409: the owner of the copyright. Hopefully, that's you, in
410: which case your last name will do. If your company owns
411: the program -- a legal issue which I will address later
412: in this article -- the company name is appropriate.
413: .pg
414: Where do you put the notice? The general
415: idea is to put it where people are likely to see it.
416: Specifically, if you're distributing a human-readable
417: code listing, put it on the first page in the first few
418: lines of code, and hard code it so that it appears on
419: the title screen, or at sign-off, or continuously. If
420: you're distributing machine-readable versions only, hard
421: code it. As an extra precaution, you should also place
422: the notice on the gummed disk label or in some other
423: fashion permanently attached to the storage medium.
424: .hn 2
425: Advantages of registration
426: .pg
427: Now, why register the program? If no one
428: ever rips off your program, you won't care much about
429: registration. If someone does rip it off, you'll kick
430: yourself for not having registered it. The reason is
431: that if the program is registered before the
432: infringement takes place, you can recover some big bucks
433: from the infringer, called statutory damages, and the
434: court can order the infringer to pay your attorneys
435: fees. Registration only costs $10.00, and it's easy to
436: do yourself. The only potential disadvantage is the
437: requirement that you deposit the first and last 25 pages
438: of your source code, which can be inspected (but not
439: copied) by members of the public.
440: .hn 2
441: A test to see if you understand this article
442: .pg
443: Now, someone tell me this: is this article copyrighted? Can you print it?
444: .hn 1
445: Who Owns The Program You Wrote?
446: .hn 2
447: Introduction
448: .pg
449: The starting point of this analysis is that if you wrote
450: the program, you are the author, and copyright belongs
451: to the author. HOWEVER, that can change instantly.
452: There are two common ways for your ownership to shift to
453: someone else: first, your program might be a \*(lqwork for
454: hire.\*(rq Second, you might sell or assign your
455: .i rights
456: in the program, which for our purposes means the
457: copyright.
458: .hn 2
459: Programs written as an employee
460: .pg
461: Most of the programs which you write at
462: work, if not all of them, belong to your employer.
463: That's because a program prepared by an employee within
464: the scope of his or her employment is a \*(lqwork for hire,\*(rq
465: and the employer is considered the
466: .i author .
467: This is more or less automatic if you are an employee -- no
468: written agreement is necessary to make your employer the
469: copyright owner. By contrast, if you can convince your
470: employer to let you be the copyright owner, you must
471: have that agreement in writing.
472: .pg
473: By the way, before you give up hope of
474: owning the copyright to the program you wrote at work,
475: figure out if you are really an employee. That is
476: actually a complex legal question, but I can tell you
477: now that just because your boss says you are an employee
478: doesn't mean that it's so. And remember that if you
479: created the program outside the
480: .i scope
481: of your job, the
482: program is not a \*(lqwork for hire.\*(rq Finally, in
483: California and probably elsewhere, the state labor law
484: provides that employees own products they create on
485: their own time, using their own tools and materials.
486: Employment contracts which attempt to make the employer
487: the owner of those off-the-job
488: .i inventions
489: are void, at least in sunny California.
490: .hn 2
491: Programs written as a contractor
492: .pg
493: Wait a minute: I'm an independent
494: contractor to Company X, not an employee. I come and go
495: as I please, get paid by the hour with no tax withheld,
496: and was retained to complete a specific project. I
497: frequently work at home with my own equipment. Is the
498: program I'm writing a \*(lqwork for hire,\*(rq owned by the
499: Company? Maybe, maybe not. In California, this area is
500: full of landmines for employers, and gold for
501: contractors.
502: .pg
503: A contractor's program is not a \*(lqwork for
504: hire,\*(rq and is not owned by the company, unless (1) there
505: is a written agreement between the company and the
506: contractor which says that it is, and (2) the work is a
507: .i" commissioned work" .
508: A
509: .i "commissioned work"
510: is one of
511: the following: (a) a contribution to a
512: .i "collective work" ,
513: (b) an audiovisual work (like a movie, and maybe like a video game),
514: (c) a translation, (d) a compilation, (e) an instructional text,
515: (f) a test or answer to a test, or (g) an atlas. I know you must be
516: tired of definitions, but this is what the real legal
517: world is made of. An example of a collective work is a
518: book of poetry, with poems contributed by various
519: authors. A piece of code which is incorporated into a
520: large program isn't a contribution to a collective work,
521: but a stand-alone program which is packaged and sold
522: with other stand-alone programs could be.
523: .pg
524: So where are we? If you are a contract
525: programmer, not an employee, and your program is a
526: .i "commissioned work" ,
527: and you have a written agreement
528: that says that the program is a \*(lqwork for hire\*(rq owned by
529: the greedy company, who owns the program? That's right,
530: the company. But guess what? In California and
531: elsewhere the company just became your employer! This
532: means that the company must now provide worker's
533: compensation benefits for you
534: .b "AND UNEMPLOYMENT INSURANCE" .
535: .hn 1
536: A Brief Word About Licenses.
537: .hn 2
538: Why a license?
539: .pg
540: When you get software at the local five and dime, the
541: manufacturer claims that you have a license to use that
542: copy of the program. The reason for this is that the
543: manufacturer wants to place more restrictions on your
544: use of the program than copyright law places. For
545: example, licenses typically say you can only use the
546: program on a single designated CPU. Nothing in the
547: copyright law says that. Some licenses say you cannot
548: make an archive copy. The copyright law says you can,
549: remember? But if the license is a valid license, now
550: you can't. You can sell or give away your copy of a
551: program if you purchased it, right? That's permitted by
552: copyright law, but the license may prohibit it. The
553: more restrictive terms of the license will apply instead
554: of the more liberal copyright rules.
555: .hn 2
556: Is it valid?
557: .pg
558: Is the license valid? This is hotly debated
559: among lawyers. (What isn't? We'll argue about the time
560: of day.) A few states have passed or will soon pass
561: laws declaring that they are valid. A few will go the
562: other way. Federal legislation is unlikely. My
563: argument is that at the consumer level, the license is
564: not binding because there is no true negotiation (unless
565: a state law says it is binding), but hey that's just an
566: argument and I'm not saying that that's the law. In any
567: case, I think businesses which buy software will be
568: treated differently in court than consumers. Businesses
569: should read those licenses and negotiate with the
570: manufacturer if the terms are unacceptable.
571: .hn 1
572: I Have A Neat Idea. Can I Trademark It? What About patent?
573: .hn 2
574: Trademark law explained
575: .pg
576: Sorry, no luck. Trademark law protects names: names of
577: products and names of services. (Note that I did not
578: say names of companies. Company names are not
579: trademarkable.) If you buy a program that has a
580: trademarked name, all that means is that you can't sell
581: your own similar program under the same name. It has
582: nothing to do with copying the program.
583: .hn 2
584: Patent Law
585: .pg
586: Patent law can apply to computer programs,
587: but it seldom does. The main reasons it seldom applies
588: are practical: the patent process is too slow and too
589: expensive to do much good in the software world. There
590: are also considerable legal hurdles to overcome in order
591: to obtain a patent. If, by chance, a program is
592: patented, the patent owner has the exclusive right to
593: make, use or sell it for 17 years.
594: .hn 1
595: CONCLUSION
596: .pg
597: I know this is a long article,
598: but believe it or not I just scratched the surface.
599: Hopefully, you'll find this information useful, and
600: you'll stop passing along myths about copyright law. If
601: anyone needs more information, I can be reached at the
602: address on the first page.
603: Sorry, but I do not usually have
604: access to the network, so you can't reach me there.
605: .sp
606: Thank you. JORDAN J. BRESLOW
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