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1.1 root 1: .\" @(#)copyright.mn 6.1 (Berkeley) 5/26/86
2: .\"
3: .ds .f copyright.mn
4: .ds h0 "Copyright Law
5: .ds h1
6: .ds h2 %
7: .ds f0 "\*(vr
8: .ds f1
9: .ds f2 "February 26, 1986
10: .mt
11: Copyright Law
12: .au
13: Jordan J. Breslow
14: .ai
15: 1225 Alpine Road, Suite 200
16: Walnut Creek, CA 94596
17: +1 415 932 4828
18: .bt
19: .fn
20: \(co Copyright 1986 Breslow, Redistributed by permission
21: .ef
22: .pg
23: I am an attorney practicing copyright law and computer
24: law. I read a series of queries in net.legal about
25: copyright law and was dismayed to find that people who
26: had no idea what they were talking about were spreading
27: misinformation over the network. Considering that the
28: penalties for copyright infringement can include
29: $50,000.00 damages per infringed work, attorneys fees,
30: court costs, criminal fines and imprisonment, and
31: considering that ignorance is no excuse and innocent
32: intent is not even a recognized defense, I cringe to see
33: the network used as a soapbox for the ill-informed. For
34: that reason, this article will discuss copyright law and
35: license law as they pertain to computer software.
36: .pg
37: My goal is to enable readers to determine when they
38: should be concerned about infringing and when they can
39: relax about it. I also want to let programmers know how
40: to obtain copyright for their work. I'll explain the
41: purpose of software licenses, and discuss the effect
42: that the license has on copyright. For those of you who
43: are programmers, I'll help you decide whether you own
44: the programs you write on the job or your boss owns
45: them. I will also mention trademark law and patent law
46: briefly, in order to clarify some confusion about which
47: is which. Incidentally, if you read this entire essay,
48: you will be able to determine whether or not the essay
49: is copyrighted and whether or not you can make a
50: printout of it.
51: .pg
52: This is a long article, and you may not want to
53: read all of it. Here is an outline to help you decide
54: what to read and what to ignore:
55: .nf
56: .si 10
57: 1. The Meaning of Copyright from the Viewpoint of the Software User
58: 1.1 A bit of history
59: 1.2 The meaning of \f2copyright\fP
60: 1.3 The meaning of \f2public domain\fP
61: 1.4 A hypothetical software purchase
62: 1.5 Can you use copyrighted software?
63: 1.6 Can you make a backup copy?
64: 1.7 Licenses may change the rules
65: 1.8 Can you modify the program?
66: 1.9 Can you break the copy protection scheme?
67: 1.10 Summary
68: .sp
69: 2. Copyright Sounds Neat -- How Do I Get One? Or, How Do I Know If
70: this Program is Copyrighted?
71: 2.1 How do you get a copyright?
72: 2.2 How do you lose a copyright?
73: 2.3 How do you waste a stamp?
74: 2.4 Do you have to register?
75: 2.5 How copyright comes into existence
76: 2.6 The copyright notice
77: 2.7 Advantages of registration
78: 2.8 A test to see if you understand this article
79: .sp
80: 3. Who Owns The Program You Wrote?
81: 3.1 Introduction
82: 3.2 Programs written as an employee
83: 3.3 Programs written as a contractor
84: .sp
85: 4. A Brief Word about Licenses
86: 4.1 Why a license?
87: 4.2 Is it valid?
88: .sp
89: .5 I Have a Neat Idea. Can I Trademark it? What about a Patent?
90: 5.1 Trademark law explained
91: 5.2 Patent law
92: .sp
93: 6. Conclusion
94: .ei
95: .fi
96: .sp 2
97: .hn 1
98: The Meaning of Copyright from the Viewpoint of the Software User
99: .hn 2
100: A bit of history
101: .pg
102: If you're not interested in history, you can
103: skip this paragraph.
104: .i Modern
105: copyright law first came
106: into existence in 1570, by an act of Parliament called
107: the Statute of Anne. Like most laws, it hasn't changed
108: much since. It was written with books and pictures in
109: mind. Parliament, lacking the foresight to predict the
110: success of the Intel and IBM corporations, failed to
111: consider the issue of copyrighting computer programs.
112: .pg
113: At first, courts questioned whether programs could be
114: copyrighted at all. The problem was that judges
115: couldn't read the programs and they figured the
116: Copyright Law was only meant to apply to things humans
117: (which arguably includes judges) could read without the
118: aid of a machine. I saw some mythical discussion about
119: that in some of the net.legal drivel. Let's lay that to
120: rest: programs are copyrightable as long as there is
121: even a minimal amount of creativity. The issue was laid
122: to rest with the Software Act of 1980. That Act
123: modified the Copyright Act (which is a Federal law by
124: the way), in such a way as to make it clear that
125: programs are copyrightable. The few exceptions to this
126: rule will rarely concern anyone. The next question to
127: arise was whether a program was copyrightable if it was
128: stored in ROM rather than on paper. The decision in
129: the Apple v. Franklin case laid that to rest: it is.
130: .hn 2
131: The meaning of \f2copyright\fP
132: .pg
133: Now, what is copyright? As it is commonly
134: understood, it is the right to make copies of something
135: -- or to put it the other way around, it is the right to
136: prohibit other people from making copies. This is known
137: as an exclusive right -- the exclusive right to
138: .i reproduce ,
139: in the biological language of the Copyright
140: Act -- and what most people don't know is that copyright
141: involves not one, not two, but five exclusive rights.
142: These are (1) the exclusive right to make copies, (2)
143: the exclusive right to distribute copies to the public,
144: (3) the exclusive right to prepare
145: .i "derivative works"
146: (I'll explain, just keep reading), (4) the exclusive
147: right to perform the work in public (this mainly applies
148: to plays, dances and the like, but it could apply to
149: software), and (5) the exclusive right to display the
150: work in public (such as showing a film).
151: .hn 2
152: The meaning of \f2public domain\fP
153: .pg
154: Before we go any further, what is public
155: domain? I saw some discussion on the net about public
156: domain software being copyrighted. Nonsense. The
157: phrase
158: .i "public domain,"
159: when used correctly, means the
160: absence of copyright protection. It means you can copy
161: public domain software to your heart's content. It
162: means that the author has none of the exclusive rights
163: listed above. If someone uses the phrase
164: .i "public domain"
165: to refer to
166: .i freeware
167: (software which is copyrighted but is distributed without advance payment
168: but with a request for a donation), he or she is using
169: the term incorrectly. Public domain means no copyright
170: -- no exclusive rights.
171: .hn 2
172: A hypothetical software purchase
173: .pg
174: Let's look at those exclusive rights from the
175: viewpoint of someone who has legitimately purchased a
176: single copy of a copyrighted computer program. For the
177: moment, we'll have to ignore the fact that the program
178: is supposedly licensed, because the license changes
179: things. I'll explain that later. For now, assume you
180: went to Fred's Diner and Software Mart and bought a
181: dozen eggs, cat food and a word processing program. And
182: for now, assume the program is copyrighted.
183: .hn 2
184: Can you use copyrighted software?
185: .pg
186: What can you do with this copyrighted
187: software? Let's start with the obvious: can you use it
188: on your powerful Timex PC? Is this a joke? No. Prior
189: to 1980, my answer might have been No, you can't use it!
190: .pg
191: People actually pay me for advice like that! Well
192: think: you take the floppy disk out of the zip lock
193: baggy, insert it in drive A and load the program into
194: RAM. What have you just done? You've made a copy in
195: RAM -- in legalese, you've reproduced the work, in
196: violation of the copyright owner's exclusive right to
197: reproduce. (I better clarify something here: the
198: copyright owner is the person or company whose name
199: appears in the copyright notice on the box, or the disk
200: or the first screen or wherever. It may be the person
201: who wrote the program, or it may be his boss, or it may
202: be a publishing company that bought the rights to the
203: program. But in any case, it's not you. When you buy a
204: copy of the program, you do not become the copyright
205: owner. You just own one copy.)
206: .pg
207: Anyway, loading the program into RAM means
208: making a copy. The Software Act of 1980 addressed this
209: absurdity by allowing you to make a copy if the copy \*(lqis
210: created as an essential step in the utilization of the
211: computer program in conjunction with a machine and ...
212: is used in no other manner ....\*(rq By the way,
213: somebody tell me what
214: .i "a machine"
215: means. If you connect
216: 5 PC's on a network is that
217: .i "a machine"
218: or
219: .i "several machines" ?
220: A related question is whether or not running
221: software on a network constitutes a performance. The
222: copyright owner has the exclusive right to do that,
223: remember?
224: .hn 2
225: Can you make a backup copy?
226: .pg
227: OK, so you bought this copyrighted program
228: and you loaded it into RAM or onto a hard disk without
229: the FBI knocking on your door. Now can you make a
230: backup copy?
231: .b YES .
232: The Software Act also provided that
233: you can make a backup copy, provided that it \*(lqis for
234: archival purposes only ....\*(rq What you cannot do,
235: however, is give the archive copy to your friend so that
236: you and your pal both got the program for the price of
237: one. That violates the copyright owner's exclusive
238: right to distribute copies to the public. Get it? You
239: can, on the other hand, give both your original and
240: backup to your friend -- or sell it to him, or lend it
241: to him, as long as you don't retain a copy of the
242: program you are selling. Although the copyright owner
243: has the exclusive right to distribute (sell) copies of
244: the program, that right only applies to the first sale
245: of any particular copy. By analogy, if you buy a
246: copyrighted book, you are free to sell your book to a
247: friend. The copyright owner does not have the right to
248: control resales.
249: .hn 2
250: Licenses may change the rules
251: .pg
252: At this point, let me remind you that we have
253: assumed that the program you got at the store was sold
254: to you, not licensed to you. Licenses may change the
255: rules.
256: .hn 2
257: Can you modify the program?
258: .pg
259: Now, you're a clever programmer, and you know
260: the program could run faster with some modifications.
261: You could also add graphics and an interactive mode and
262: lots of other stuff. What does copyright law say about
263: your plans? Well ... several different things,
264: actually. First, recall that the copyright owner has
265: the exclusive right to make derivative works. A
266: derivative work is a work based on one or more
267: preexisting works. It's easy to recognize derivative
268: works when you think about music or books. If a book is
269: copyrighted, derivative works could include a
270: screenplay, an abridged edition, or a translation into
271: another language. Derivative works of songs might be
272: new arrangements (like the jazz version of Love Potion
273: Number 9), a movie soundtrack, or a written
274: transcription, or a
275: .i "long version" , (such as the fifteen
276: minute version of \*(lqWipe Out\*(rq with an extended drum solo
277: for dance parties). In my opinion, you are making a
278: derivative work when you take the store-bought word
279: processor and modify it to perform differently. The
280: same would be true if you
281: .i translated
282: a COBOL program
283: into BASIC. Those are copyright infringements -- you've
284: horned in on the copyright owner's exclusive right to
285: make derivative works. There is, however, some
286: breathing room. The Software Act generously allows you
287: to
288: .i adapt
289: the code if the adaptation \*(lqis created as an
290: essential step in the utilization of the computer
291: program in conjunction with a machine ....\*(rq For
292: example, you might have to modify the code to make it
293: compatible with your machine.
294: .hn 2
295: Can you break the copy protection scheme?
296: .pg
297: Moving right along, let's assume your store
298: bought program is copy protected, and you'd really like
299: to make a backup copy. You know this nine-year-old whiz
300: who can crack any copy-protection scheme faster than you
301: can rearrange a Rubix cube. Is there a copyright
302: violation if he succeeds? There's room to argue here.
303: When you try to figure out if something is an
304: infringement, ask yourself, what exclusive right am I
305: violating? In this case, not the right to make copies,
306: and not the right to distribute copies. Public
307: performance and display have no relevance. So the key
308: question is whether you are making a
309: .i "derivative work" .
310: My answer to that question is, \*(lqI doubt it.\*(rq On the
311: other hand, I also doubt that breaking the protection
312: scheme was \*(lqan essential step\*(rq in using the program in
313: conjunction with a machine. It might be a \*(lqfair use,\*(rq
314: but that will have to wait for another article. Anyone
315: interested in stretching the limits of the \*(lqfair use\*(rq
316: defense should read the Sony
317: .i Betamax
318: case.
319: .hn 2
320: Summary
321: .pg
322: Let me summarize. Copyright means the
323: copyright owner has the exclusive right to do certain
324: things. Copyright infringement means you did one of
325: those exclusive things (unless you did it within the
326: limits of the Software Act, i.e., as an essential step ....).
327: .hn 1
328: Copyright Sounds Neat -- How Do I Get One? Or, How Do I Know if this Program is Copyrighted?
329: .hn 2
330: How do you get a copyright?
331: .pg
332: If you've written an original program, what do you have to do to get a
333: copyright? Nothing. You already have one.
334: .hn 2
335: How do you lose a copyright?
336: .pg
337: If you've written an original
338: program, what do you have to do to lose your copyright
339: protection? Give copies away without the copyright
340: notice.
341: .hn 2
342: How do you waste a stamp?
343: .pg
344: If you mail the program to yourself
345: in a sealed envelope, what have you accomplished?
346: You've wasted a stamp and an envelope and burdened the
347: postal system unnecessarily.
348: .hn 2
349: Do you have to register?
350: .pg
351: Do you have to register your program
352: with the U.S. Copyright Office? No, but it's a damn
353: good idea.
354: .hn 2
355: How copyright comes into existence
356: .pg
357: Copyright protection (meaning the five
358: exclusive rights) comes into existence the moment you
359: .i fix
360: your program in a
361: .i "tangible medium" .
362: That means
363: write it down, or store it on a floppy disk, or do
364: something similar. Registration is optional. The one
365: thing you must do, however, is protect your copyright by
366: including a copyright notice on every copy of every
367: program you sell, give away, lend out, etc. If you
368: don't, someone who happens across your program with no
369: notice on it can safely assume that it is in the public
370: domain (unless he actually knows that it is not).
371: .hn 2
372: The copyright notice
373: .pg
374: The copyright notice has three parts. The
375: first can be either a c with a circle around it (\(co), or the
376: word
377: .b Copyright
378: or the abbreviation
379: .b Copr.
380: The c
381: with a circle around it is preferable, because it is
382: recognized around the world; the others are not. That's
383: incredibly important. Countries around the world have
384: agreed to recognize and uphold each others' copyrights,
385: but this world-wide protection requires the use of the c
386: in a circle. On disk labels and program packaging, use
387: the encircled c. Unfortunately, computers don't draw
388: small circles well, so programmers have resorted to a c
389: in parentheses: (c). Too bad. That has no legal
390: meaning. When you put your notice in the code and on
391: the screen, use
392: .b Copyright
393: or
394: .b Copr.
395: if you can't make a circle.
396: .pg
397: The second part of the notice is the \*(lqyear
398: of first publication of the work.\*(rq
399: .i Publication
400: doesn't mean distribution by Osborne Publishing Co. It
401: means distribution of copies of the program to the
402: public \*(lqby sale or other transfer of ownership, or by
403: rental, lease, or lending.\*(rq So when you start handing
404: out or selling copies of your precious code, you are
405: publishing. Publication also takes place when you
406: merely OFFER to distribute copies to a group for further
407: distribution. Your notice must include the year that
408: you first did so.
409: .pg
410: The third part of the notice is the name of
411: the owner of the copyright. Hopefully, that's you, in
412: which case your last name will do. If your company owns
413: the program -- a legal issue which I will address later
414: in this article -- the company name is appropriate.
415: .pg
416: Where do you put the notice? The general
417: idea is to put it where people are likely to see it.
418: Specifically, if you're distributing a human-readable
419: code listing, put it on the first page in the first few
420: lines of code, and hard code it so that it appears on
421: the title screen, or at sign-off, or continuously. If
422: you're distributing machine-readable versions only, hard
423: code it. As an extra precaution, you should also place
424: the notice on the gummed disk label or in some other
425: fashion permanently attached to the storage medium.
426: .hn 2
427: Advantages of registration
428: .pg
429: Now, why register the program? If no one
430: ever rips off your program, you won't care much about
431: registration. If someone does rip it off, you'll kick
432: yourself for not having registered it. The reason is
433: that if the program is registered before the
434: infringement takes place, you can recover some big bucks
435: from the infringer, called statutory damages, and the
436: court can order the infringer to pay your attorneys
437: fees. Registration only costs $10.00, and it's easy to
438: do yourself. The only potential disadvantage is the
439: requirement that you deposit the first and last 25 pages
440: of your source code, which can be inspected (but not
441: copied) by members of the public.
442: .hn 2
443: A test to see if you understand this article
444: .pg
445: Now, someone tell me this: is this article copyrighted? Can you print it?
446: .hn 1
447: Who Owns The Program You Wrote?
448: .hn 2
449: Introduction
450: .pg
451: The starting point of this analysis is that if you wrote
452: the program, you are the author, and copyright belongs
453: to the author. HOWEVER, that can change instantly.
454: There are two common ways for your ownership to shift to
455: someone else: first, your program might be a \*(lqwork for
456: hire.\*(rq Second, you might sell or assign your
457: .i rights
458: in the program, which for our purposes means the
459: copyright.
460: .hn 2
461: Programs written as an employee
462: .pg
463: Most of the programs which you write at
464: work, if not all of them, belong to your employer.
465: That's because a program prepared by an employee within
466: the scope of his or her employment is a \*(lqwork for hire,\*(rq
467: and the employer is considered the
468: .i author .
469: This is more or less automatic if you are an employee -- no
470: written agreement is necessary to make your employer the
471: copyright owner. By contrast, if you can convince your
472: employer to let you be the copyright owner, you must
473: have that agreement in writing.
474: .pg
475: By the way, before you give up hope of
476: owning the copyright to the program you wrote at work,
477: figure out if you are really an employee. That is
478: actually a complex legal question, but I can tell you
479: now that just because your boss says you are an employee
480: doesn't mean that it's so. And remember that if you
481: created the program outside the
482: .i scope
483: of your job, the
484: program is not a \*(lqwork for hire.\*(rq Finally, in
485: California and probably elsewhere, the state labor law
486: provides that employees own products they create on
487: their own time, using their own tools and materials.
488: Employment contracts which attempt to make the employer
489: the owner of those off-the-job
490: .i inventions
491: are void, at least in sunny California.
492: .hn 2
493: Programs written as a contractor
494: .pg
495: Wait a minute: I'm an independent
496: contractor to Company X, not an employee. I come and go
497: as I please, get paid by the hour with no tax withheld,
498: and was retained to complete a specific project. I
499: frequently work at home with my own equipment. Is the
500: program I'm writing a \*(lqwork for hire,\*(rq owned by the
501: Company? Maybe, maybe not. In California, this area is
502: full of landmines for employers, and gold for
503: contractors.
504: .pg
505: A contractor's program is not a \*(lqwork for
506: hire,\*(rq and is not owned by the company, unless (1) there
507: is a written agreement between the company and the
508: contractor which says that it is, and (2) the work is a
509: .i" commissioned work" .
510: A
511: .i "commissioned work"
512: is one of
513: the following: (a) a contribution to a
514: .i "collective work" ,
515: (b) an audiovisual work (like a movie, and maybe like a video game),
516: (c) a translation, (d) a compilation, (e) an instructional text,
517: (f) a test or answer to a test, or (g) an atlas. I know you must be
518: tired of definitions, but this is what the real legal
519: world is made of. An example of a collective work is a
520: book of poetry, with poems contributed by various
521: authors. A piece of code which is incorporated into a
522: large program isn't a contribution to a collective work,
523: but a stand-alone program which is packaged and sold
524: with other stand-alone programs could be.
525: .pg
526: So where are we? If you are a contract
527: programmer, not an employee, and your program is a
528: .i "commissioned work" ,
529: and you have a written agreement
530: that says that the program is a \*(lqwork for hire\*(rq owned by
531: the greedy company, who owns the program? That's right,
532: the company. But guess what? In California and
533: elsewhere the company just became your employer! This
534: means that the company must now provide worker's
535: compensation benefits for you
536: .b "AND UNEMPLOYMENT INSURANCE" .
537: .hn 1
538: A Brief Word About Licenses.
539: .hn 2
540: Why a license?
541: .pg
542: When you get software at the local five and dime, the
543: manufacturer claims that you have a license to use that
544: copy of the program. The reason for this is that the
545: manufacturer wants to place more restrictions on your
546: use of the program than copyright law places. For
547: example, licenses typically say you can only use the
548: program on a single designated CPU. Nothing in the
549: copyright law says that. Some licenses say you cannot
550: make an archive copy. The copyright law says you can,
551: remember? But if the license is a valid license, now
552: you can't. You can sell or give away your copy of a
553: program if you purchased it, right? That's permitted by
554: copyright law, but the license may prohibit it. The
555: more restrictive terms of the license will apply instead
556: of the more liberal copyright rules.
557: .hn 2
558: Is it valid?
559: .pg
560: Is the license valid? This is hotly debated
561: among lawyers. (What isn't? We'll argue about the time
562: of day.) A few states have passed or will soon pass
563: laws declaring that they are valid. A few will go the
564: other way. Federal legislation is unlikely. My
565: argument is that at the consumer level, the license is
566: not binding because there is no true negotiation (unless
567: a state law says it is binding), but hey that's just an
568: argument and I'm not saying that that's the law. In any
569: case, I think businesses which buy software will be
570: treated differently in court than consumers. Businesses
571: should read those licenses and negotiate with the
572: manufacturer if the terms are unacceptable.
573: .hn 1
574: I Have A Neat Idea. Can I Trademark It? What About patent?
575: .hn 2
576: Trademark law explained
577: .pg
578: Sorry, no luck. Trademark law protects names: names of
579: products and names of services. (Note that I did not
580: say names of companies. Company names are not
581: trademarkable.) If you buy a program that has a
582: trademarked name, all that means is that you can't sell
583: your own similar program under the same name. It has
584: nothing to do with copying the program.
585: .hn 2
586: Patent Law
587: .pg
588: Patent law can apply to computer programs,
589: but it seldom does. The main reasons it seldom applies
590: are practical: the patent process is too slow and too
591: expensive to do much good in the software world. There
592: are also considerable legal hurdles to overcome in order
593: to obtain a patent. If, by chance, a program is
594: patented, the patent owner has the exclusive right to
595: make, use or sell it for 17 years.
596: .hn 1
597: CONCLUSION
598: .pg
599: I know this is a long article,
600: but believe it or not I just scratched the surface.
601: Hopefully, you'll find this information useful, and
602: you'll stop passing along myths about copyright law. If
603: anyone needs more information, I can be reached at the
604: address on the first page.
605: Sorry, but I do not usually have
606: access to the network, so you can't reach me there.
607: .sp
608: Thank you. JORDAN J. BRESLOW
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