textfiles/law/newlaw.txt

The following message was extracted from the Compuserve Programming forum
on Tuesday, 2 October 1990.  It would appear to be a rather important 
topic for those of us in the PC software/shareware/freeware/etc community.

Please note that in the interests of clarity, several messages which are
continuations of the first message have been combined and the intervening
headers removed.

#: 41298 S1/General Info [P]
    02-Oct-90  01:36:57
Sb: #Dangerous Copyright Law
Fm: Stephen Haynes 76236,3547
To: All

I am posting this long message here and on other relevant sections to warn
authors of shareware of a dangerous piece of federal legislation that has been
passed by the House of Representatives as part of the Computer Software Rental
Amendments Act of 1990.  I tell you this from my position as a member of the
Proprietary Rights Committee of the Information Industry Association and an
attorney who represents West Publishing Company on intellectual property
matters.  These comments do not necessarily reflect the position of the IIA
PRC, although they are also concerned that the legislation is illadvised.

Essentially, the legislation proposes to throw under a degree of federal
scrutiny and regulation all of computer "shareware."  In addition, by its
legislative history (about which more is said below), the House subcommittee
that considered this legislation completely messed up what we differentiate as
"shareware" and "freeware," and these definitions are likely to follow the
legislation (if enacted) into court cases that may arise in the future.

The relevant section (Sec. 105) has been passed by the House, but is not in
the equivalent legislation pending before the Senate, so it could only be
placed in the final bill by a conference committee.  This is not good law, and
should be opposed by all concerned with the free and unfettered development of
shareware.

Following is the text of the relevant portion of the proposed
statute:
 
     SEC. 105 [of Computer Software Rental Amendments Act of
     1990].  RECORDATION OF SHAREWARE.
 
          (a) In General.--The Register of Copyrights is
     authorized, upon receipt of any document designated as
     pertaining to computer shareware and the fee prescribed
     by section 708 of title 17, United States Code, to
     record the document and return it with a certificate of
     recordation.
 
          (b) Maintenance of Records; Publication of
     Information.--The Register of Copyrights is authorized
     to maintain current, separate records relating to the
     recordation of documents under subsection (a), and to
     compile and publish at periodic intervals information
     relating to such recordations.  Such publications shall
     be offered for sale to the public at prices based on
     the cost of reproduction and distribution.
 
          (c) Deposit of Copies in Library of Congress.--In
     the case of public domain computer shareware, at the
     election of the person recording a document under
     subsection (a), 2 complete copies of the best edition
     (as defined in section 101 of title 17, United States
     Code) of the computer shareware as embodied in machine-
     readable form may be deposited for the benefit of the
     Machine-Readable Collections Reading Room of the
     Library of Congress.
 
          (d) Regulations.--The Register of Copyrights is
     authorized to establish regulations not inconsistent
     with law for the administration of the functions of the
     Register under this section.  All regulations
     established by the Register are subject to the approval
     of the Librarian of Congress.
 
The House of Representatives Subcommittee report (that
establishes the "legislative history" of the statute), contains
some even more unfortunate language.  I have emphasized by all
caps those portions I find are most troubling:
 
     Section 105.--Recordation of Shareware
 
          Section 105 of the bill -- which is uncodified --
     authorizes the Register of Copyrights to record
     documents relating to shareware, to maintain current,
     separate records relating to such documents, and TO
     PUBLISH AT PERIODIC INTERVALS INFORMATION RELATING TO
     SUCH RECORDATIONS.  The purpose of section 105 is to
     encourage individuals desiring to permit unrestricted,
     or liberal, use of software they create, to file
     documents to that effect with the Copyright Office so
     that an effective public record will be available.
          Subsection (a) authorizes the Register, upon
     receipt of a document designated as pertaining to
     computer shareware, to record the document and return
     it with a certificate of recordation.  Such a document
     could include license agreements and statements that
     the author attaches conditions to the use or
     distribution of a computer program.  Documents would be
     recorded under the fee structure in effect for other
     documents relating to copyright.
 
          For purposes of this section, shareware is
     computer software which meets the standard of
     originality in the Copyright Act but for which the
     author sets certain conditions for its use and
     distribution.  THE COMMITTEE IS AWARE THAT THE TERMS
     "COMPUTER SHAREWARE" AND "PUBLIC DOMAIN COMPUTER
     SHAREWARE" ARE NOT FOUND IN THE COPYRIGHT ACT, AND ARE
     SUSCEPTIBLE OF DIFFERENT MEANINGS IN THE COMPUTER AND
     LEGAL COMMUNITIES.  IT IS APPARENT THAT THERE IS A LACK
     OF A CENTRAL CLEARINGHOUSE FOR INFORMATION ABOUT
     SHAREWARE, AND THAT SUCH A CLEARINGHOUSE WOULD AID IN
     WIDER DISSEMINATION OF SUCH WORKS.  The Register is
     given wide latitude to promulgate practices and
     procedures that fulfill the purposes of this section
     and also to obtain information -- prior to the "sunset"
     of this Title -- about an important manifestation of
     the creative computer community.  Because of the
     different interpretations of the term shareware in the
     computer industry, it will be left up to the individual
     author submitting the document to designate it as
     pertaining to shareware.  Failure to so designate the
     document will result in the document being recorded
     with the general copyright records.  COMPUTER SHAREWARE
     DOES NOT INCLUDE ELECTRONIC DATA BASES, OR OTHER WORKS
     OF AUTHORSHIP.
 
          Subsection (b) provides the Register with
     authority to maintain current, separate records
     relating to the recordation of documents and to compile
     and publish at periodic intervals information relating
     to such recordations.  Such publications shall be
     offered to the public at prices based on the cost of
     reproduction and distribution.
          In order to facilitate access to shareware, Title
     I of H.R. 5498 provides, in subsection (c) of section
     105, that any individual recording a document
     pertaining to shareware MAY ALSO DEPOSIT TWO COPIES OF
     THE SHAREWARE AS EMBODIED IN MACHINE-READABLE FORM FOR
     THE BENEFIT OF THE LIBRARY OF CONGRESS' MACHINE-
     READABLE READING ROOM.  The nature of the deposit is to
     be determined by the definition of "best edition"
     contained in section 101 of title 17, United States
     Code.  Subsection (c) does not affect the mandatory
     deposit requirements of section 407 of title 17, United
     States Code, for computer software that is subject to
     copyright.
          Subsection (d) authorizes the Register to
     establish regulations in conformity with law for the
     administration of the functions of the Copyright
     Office.  All regulations are subject to the approval of
     the Librarian of Congress.
 
This proposed legislation is faulty or dangerous because: (1) registration
need not be by the author, which means that any person can appear able not
only to register with the Copyright Office, but deposit the shareware with the
Library of Congress; (2) the Library of Congress will thus be engaged in
activity (the collection of shareware) adequately performed by the private
sector; (3) the sale by the Copyright Office of compilations of registered
shareware is also a task better performed by the private sector; and (4) the
statute's language completely confuses or states erroneously the nature of
what it calls "public domain shareware," which we would probably refer to as
freeware.

I sincerely encourage each of you to write your Congressmen stating your
opposition to this bill, should such provisions make it out of conference, and
write your Senators stating your opposition and asking that the language not
be added to the Senate version of the Computer Software Rental Amendments Act
of 1990.

Steve Haynes




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