CD-ROM Today - The Disc! 2/CD-ROM_Today_-_The_Disc_2_June-July_1994.iso/inetinfo/copywrit.law

Text File | 1993-03-31 | 25KB | 437 lines

COPYRIGHT LAW (Copyright 1986 Breslow)


        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 include $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 per-
tain 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  program-
mers,  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 ig-
nore:


 PART ONE:  THE MEANING OF COPYRIGHT FROM THE VIEWPOINT
            OF THE SOFTWARE USER

        0.1       A bit of history
        0.2       The meaning of "copyright"
        0.3       The meaning of "public domain"

        0.4       A hypothetical software purchase
        0.5/0.6   Can you use copyrighted software?
        0.7       Can you make a backup copy?
        0.8       Licenses may change the rules
        0.9       Can you modify the program?
        0.10      Can you break the copy protection scheme?
        0.11      Summary

 PART TWO:  COPYRIGHT SOUNDS NEAT -- HOW DO I GET ONE?
            OR, HOW DO I KNOW IF THIS PROGRAM IS COPYRIGHTED?

        0.12.1    How do you get a copyright?
        0.12.2    How do you lose a copyright?
        0.12.3    How do you waste a stamp?
        0.12.4    Do you have to register?

        0.13      How copyright comes into existence
        0.14/0.17 The copyright notice
        0.18      Advantages of registration
        0.19      A test to see if you understand this article

 PART THREE:  WHO OWNS THE PROGRAM YOU WROTE?

        0.20      Introduction
        0.21/0.22 Programs written as an employee
        0.23/0.25 Programs written as a contractor

 PART FOUR:  A BRIEF WORD ABOUT LICENSES

        0.26      Why a license?
        0.27      Is it valid?

 PART FIVE:  I HAVE A NEAT IDEA.  CAN I TRADEMARK IT?
             WHAT ABOUT A PATENT?

        0.28      Trademark law explained
        0.29      Patent law
        0.39      CONCLUSION:  Where to find me for more info.


         PART ONE:  THE MEANING OF COPYRIGHT FROM THE VIEWPOINT OF THE
                    SOFTWARE USER

             0.1  If you're not interested in history, you can skip this
paragraph.    "Modern"  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  copyright-
ing  computer  programs.   At first, courts questioned whether  programs
could  be  copyrighted  at  all.   The problem was that judges  couldn't
read  the programs and they figured the Copyright Law was only  meant to
apply  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 clear that programs are  copyright-
able.    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.

             0.2  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
"reproduce,"  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  distribute  copies to the
public,  (3)  the  exclusive  right  to prepare "derivative works" (I'll
explain,  just  keep  reading),  (4)  the exclusive 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).

            0.3  Before we go any further, what is public domain?  I saw
some   discussion   on  the  net  about  public  domain  software  being
copyrighted.     Nonsense.    The  phrase  "public  domain,"  when  used
correctly,  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  "public  domain"  to  refer  to "freeware"
(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 exclusive
rights.

            0.4  Let's look at those exclusive rights from the viewpoint
of   someone   who  has  legitimately  purchased  a  single  copy  of  a
copyrighted    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, assume 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.

             0.5  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!

  And  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 owner 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.)

                0.6  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 machine" means.  If you connect 5 PC's on a network is
that  "a    machine" or several machines?  A related question is whether
or  not    running software on a network constitutes a performance.  The
copyright  owner has the exclusive right to do that, remember?

                 0.7  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, however, 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 original 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.

          0.8  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.

           0.9  Now, you're a clever programmer, and you know the program
could  run  faster  with some modifications.  You could also add graphics
and  an  interactive  mode  and lots of other stuff.  What does copyright
law  say  about  your  plans?    Well  .  .  .  several different 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 "long version,"
(such  as  the fifteen minute version of "Wipe Out" with an extended drum
solo  for  dance  parties).    In my opinion, you are making a derivative
work  when  you  take  the  store-bought  word processor and modify it to
perform  differently.    The  same  would  be  true if you "translated" a
COBOL  program  into  BASIC.  Those are copyright infringements -- you've
horned  in  on  the  copyright owner's exclusive right to make derivative
works.    There  is,  however,  some  breathing  room.   The Software Act
generously  allows  you  to  "adapt"  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.

                 0.10  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 argue here.  When
you  try  to  figure  out  if something is an infringement, ask yourself,
what  exclusive  right  am  I  violating?  In this case, not the right to
make   copies,   and   not  the  right  to  distribute  copies.    Public
performance  and  display  have  no  relevance.    So the key question is
whether  you  are  making a "derivative work." My answer to that question
is,  "I  doubt  it."    On the other hand, I also doubt that breaking the
protection  scheme  was  "an  essential  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 "Betamax" case.

          0.11 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 . . . .).


         0.12  PART TWO:  COPYRIGHT SOUNDS NEAT -- HOW DO I GET ONE?
                          or,
                          HOW DO I KNOW IF THIS PROGRAM IS COPYRIGHTED?

                   0.12.1  If you've written an original program, what do
you have to do to get a copyright? Nothing.  You already have one.

                   0.12.2  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.

                  0.12.3  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.

                    0.12.4  Do you have to register your program with the
U.S. Copyright Office?  No, but it's a damn good idea.

           0.13  Copyright protection (meaning the five exclusive rights)
comes  into  existence  the  moment you "fix" your program in a "tangible
medium."    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 including a copyright notice
on  every  copy  of every program you sell, give away, lend out, etc.  If
you  don't,  someone who happens 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).

            0.14  The copyright notice has three parts.  The first can be
either  a  c  with  a  circle  around  it, or the word "copyright" or the
abbreviation  "Copr."      The  c  with a circle around it is preferable,
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  worldwide
protection  requires  the  use  of the c in a circle.  On disk labels and
program  packaging,  use the encircled c.  Unfortunately, computers don't
draw  small  circles  well,  so  programmers  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 circle.

                0.15  The second part of the notice is the "year of first
publication  of  the  work."   "Publication" doesn't mean distribution by
Osborne  Publishing  Co.   It means distribution of copies of the program
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.  Publication also takes place
when  you  merely  OFFER  to  distribute  copies  to  a group for further
distribution.  Your notice must include the year that you first did so.

           0.16  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 appropriate.

           0.17  Where do you put the notice?  The general idea is to put
it  where  people  are  likely  to  see  it.    Specifically,  if  you're
distributing  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 appears 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.

            0.18  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 infringement
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 disadvantage 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.

           0.19  Now, someone tell me this:  is this article copyrighted?
Can you print it?


         0.20   PART THREE:  WHO OWNS THE PROGRAM YOU WROTE?

  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 your "rights" in the
program, which for our purposes means the copyright.

           0.21  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 "author."  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.

                  0.22  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 "scope" 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.  Employment contracts which attempt
to  make  the  employer  the owner of those off-the-job  "inventions" are
void, at least in sunny California.

           0.23  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.

             0.24 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 "commissioned work."  A "commissioned work" is one of the
following:    (a)    a  contribution  to  a  "collective  work,"  (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.

            0.25  So where are we?  If you are a contract programmer, not
an  employee,  and  your program is a "commissioned work," and you have a
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 UNEMPLOYMENT INSURANCE.


         0.26  PART FOUR: A BRIEF WORD ABOUT LICENSES.

  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 copyright 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.

                 0.27  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 consumers.  Businesses should  read
those  licenses  and  negotiate  with  the manufacturer if the terms  are
unacceptable.

         0.28 FINALLY, PART FIVE:  I HAVE A NEAT IDEA.
                                   CAN I TRADEMARK IT?
                                   WHAT ABOUT PATENT?

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.

           0.29  Patent law can apply to computer programs, but it seldom
does.    The  main  reasons  it seldom applies are practical:  the 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.

            0.30  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 (415)
932-4828,  or  by  mail  at 1225 Alpine Road, Suite 200, Walnut Creek, CA
94596.  Sorry,  but  I  do not usually have access to the network, so you
can't reach me there.  Thank you.  JORDAN J. BRESLOW
--
        Lisa Breslow     [phone] x2418
        Varian Instruments 2700 Mitchell Dr.  Walnut Creek, Ca. 94598
        {zehntel,amd,fortune,resonex}!varian!lisa