COPYRIGHT LAW - PART II

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 world-wide 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.

(Copyright 1986 Breslow)

Written by Jordan J. Breslow

(Reprinted by permission of the author)