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