223 lines
12 KiB
Plaintext
223 lines
12 KiB
Plaintext
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Copyrighting Public Domain Programs
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by
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June B. Moore, JD
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Member, California State Bar
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32 Salinas Avenue
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San Anselmo CA 94960
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(415) 456-5889
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Also: Marin RBBS
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(415) 383-0473
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There is concern about the copyright status of the programs
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provided by innovative and diligent members of the CP/M Users
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Group to the Group with the understanding, explicitly stated
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or otherwise, that the programs were contributed to the
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"public domain."
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The term "public domain" means, from a legal point of view, a
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program or other work that does not have copyright protection.
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The indiscriminate use of the word confuses the copyright
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issues. A work disclosed to a specific group of people for a
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limited purpose is not necessarily "public domain" software.
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A new federal copyright law went into effect on January 1,
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1978, which complicates the following discussion for that
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software written and/or contributed prior to that date. I
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will start with a discussion of the law as it applies now and
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to programs written after January 1, 1978. The new law is
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Title 17, U.S. Code. Any written material (including computer
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programs) fixed in a tangible form (written somewhere, ie a
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printout) is considered copyrighted without any additional
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action on the part of the author. Thus, it is not necessary
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that a copy of the program be deposited with the Copyright
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Office in Washington for the program to be protected as
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copyrighted.
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A contribution of a program to the members of the public (CP/M
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Users Group) for their noncommercial use constitutes a license
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for that purpose and that purpose only. It does not destroy
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the programmers rights in the copyright to the program.
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HOWEVER, the government does not enforce the programmers
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rights. A copyright is a property right, just like the right
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you have in the house you own. If someone trespasses on your
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property, the cops may come and put the fellow in jail, but
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they will not stop him from doing it again nor will they
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procure compensation for any damage the intruder may have done
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to your property. You have to do that yourself by going to
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court. So it is with copyrights. In order to prevent anyone
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from selling your programs you must ask a court (federal) to
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stop him by an injunction and to give you damages for the
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injury he has done to you by selling the program.
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Going to court requires that the program be registered with
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the Copyright Office in Washington,D.C. The fee is $10.
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The government will prosecute CRIMINAL copyright
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infringements, such as where someone simply copies (as in
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copying an audio or videotape) for profit, and when the
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government can show criminal intent (ie, knowing violation of
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the law or fraud in the acts of the copier). This is not done
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very frequently except in the case of wholesale audio and
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video taping pirates.
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The copyright law has a concept known as a "derivative work."
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A derivative work is one which is based on a work already
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entitled to and protected by copyright. The original author
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of a work has the sole rights to "derivative" works derived
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from his work. He can authorize (license) others to prepare
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derivative works from his work, as in the case of a programmer
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of a Users Group program who says "If anyone fixes this for a
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DCHayes MM-100, let me know."
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I suspect that many of the programs contributed to the Group
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and their modifications fall within this category of license -
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that is, users have been allowed to prepare derivative works.
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However, the original author does not lose his original
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copyright! And all the derivative works made using the
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original are dependent on the continuation of the license
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except as to the parts added by the author of the derivative
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works. A simple explanation might help: A program provides
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for generating data showing ratios for sales to inventory
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turnovers (I know the example is silly), and the output is
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simply a bunch of numbers. The second programmer decides to
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enhance the program by turning the numbers into some kind of
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chart or graph. The program that generated the numbers is
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protected as to the original author. The output formatting
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ONLY is protected as a license derivative work to the second
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programmer.
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The restriction placed on the programs in recent years
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limiting use to individuals on their personal machines and
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denying use of a program for commercial purposes is probably a
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valid restriction of the license granted in the CP/M Users
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Group Library. It constitutes fair warning to all who would
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lift the program and attempt to convert it to commercial
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purposes that such use is not licensed. It is not clear that
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such restriction applies automatically to earlier donations to
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the Group, unless there is something explicit in the
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documentation that accompanies the work itself when it is
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distributed.
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In many instances, the programs donated prior to 1978 were not
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copyrighted (that is, contained no copyright notice and were
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not registered with the Copyright Office). The status of
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these programs is not clear, although a case can be made that
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they were initially distributed only to paid-up members of the
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CP/M Users Group. My documentation from the Users Group,
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which is undated but which is postmarked June 13, 1978, states
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"The material [donations of programs] is received by the Group
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with the understanding that the contributor is authorized to
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make it available to hobbiests for their individual non-
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commercial use.....Members receiving material are free and
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encouraged to share it with other hobbiests for their
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individual non- commercial use." The membership information
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included a request for any member's knowledge of persons
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violating the non-commercial restriction on the programs
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distributed. A membership fee of $4 was charged for 1978 as a
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prerequisite to receiving material.
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This limitation on the prospective use of a program obtained
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from the group indicates that the distribution was limited to
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non-commercial users. Pre-1/1/78 software that was not
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automatically copyrighted and did not contain a copyright
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notice could be protected only under state laws in existence
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at that time. The state laws varied considerably but
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generally the rule is that, if the work was not distributed
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willy-nilly to the public without restriction, the state law
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protected the work even if the federal law niceties were not
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complied with. The problem is whether the restrictions of the
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CP/Users Group distribution were sufficient limitations on the
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"publication" of the program. Publication destroys a state
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law copyright, making the work free to all. "Publication"
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here means making it available to the public at large, even
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though restrictions were placed on the initial disclosure of
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the program. That is something only the court or jury
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actually hearing the case can decide and may well turn on
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facts not available to me. For example, was any real effort
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made to prevent computer stores from distributing the programs
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to their customers who were not members of the Group? Were
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the non-commercial use limitations explained to those
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customers? To the computer stores?
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One other concern has been expressed by some program authors,
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those authors who have desired not to have their programs
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modified but whose programs have nonetheless been modified.
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Referring to the discussion above about the limitations on use
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of contributed programs, if the limitation did not authorize
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anything but "use" of the program, then the modifications
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constituted "derivative" works that were not authorized.
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This, unfortunately, would be a very tricky thing to prove,
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and it would have to be proved - how did the parties
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understand the authorization to use the programs (ie, was
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modification prevented but noncommercial use allowed?). If
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there was an implied license to modify (for example, because
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the program was included with other programs in which
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modifications were explicitly authorized), it might be very
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difficult to prove infringement under either the state or
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federal law, depending on which was applicable.
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It should be clear from the above, however, that modifications
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of programs entitled to copyright protection are infringements
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if they are not authorized by the owner of the copyright in
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the original program. The problem is in the proof of lack of
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authorization.
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Since January 1, 1978, all programs are protected by federal
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copyright laws without regard to copyright notice or
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registration with the Copyright Office and the state laws no
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longer apply. The federal law "preempted" the state laws on
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that date. But the federal rules apply across the board ONLY
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to works first "fixed" or "written" after that date. However,
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improvements or modifications in one's own program can qualify
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for federal copyright protection under the new law and perhaps
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those interested or affected by the problem should make formal
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registration of their works as well as including the copyright
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notice somewhere in the program.
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----------------------------------
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It is obvious that most volunteer programmers do not have the
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finances or time, or inclination for that matter, to pursue a
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legal remedy in the courts. At the same time, they do not
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want the software they authored to be used by others for
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commercial gain without some control over its use.
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I suggest that microcomputer software authors nation-wide form
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an organization similar to that of ASCAP or BMI, although on a
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smaller scale, to monitor improper uses of software donated to
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the hobbiest for personal use. Only through concentrating the
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efforts and power of all authors can real protection be
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obtained. Otherwise, the unscrupulous vendor is going to take
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his chances that the individual programmer will not or can not
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defend his copyright.
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Such a group might be formed with the support of an active
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computer group like the NJ Amateur Computer Group or the
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Homebrew Computer Club in California. Or it could be
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established independently if there were sufficient interest
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and an organizer could be found to do the necessary paperwork,
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collect the dues needed to provide a war chest, and hire the
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attorneys and other persons necessary. It wouldn't have to be
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a full time job for anyone but it would have to be more than
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volunteer activity.
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My suggestion appeared (anonymously) in an article in the July
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1982 Microcomputing. I am not interested in doing it,
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although I would cooperate with any efforts along these lines
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with counsel and advice.
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I suggest, however, that an early attack, which might include
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programmers for profit whose programs are slightly modified by
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fly-by-night vendors without compensation, will establish the
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principles necessary to deter future invasions of your
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copyrights.
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June B. Moore, JD
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Member, California State Bar
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