Usenet Mac Digest Saturday, October 15, 1988 Volume 4 : Issue 140
From: lisa@vaxwaller.UUCP (Lisa Breslow)
Subject: Copyright Law Revisited
Date: 10 Oct 88 20:11:59 GMT
Organization: Varian Instruments, Walnut Creek CA
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
