COPYRIGHT LAW (Copyright 1986 Breslow)

BY JORDAN J. BRESLOW
(Reprinted by permission of the author)


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 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:

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 copyrighting 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 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.

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 . . . 

TO CONTINUE WITH THIS ARTICLE SELECT "COPYRIGHT LAW PART II"