180 lines
7.4 KiB
Plaintext
180 lines
7.4 KiB
Plaintext
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SOFTWARE AND COPYRIGHTS: REGISTRATION, NOTICE AND WHY
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By Charles B. Kramer, Esq.
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09/25/91
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You own a copyright in software you create the moment you "embody
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it in a tangible medium", at least unless you create it under a
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contract that provides otherwise, or as an employee. What this
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means is, you own a copyright in the software you create the
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moment you preserve it by writing it down, dictating it to a tape
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recorder, or saving it to a disk. Since you own the copyright,
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you have, without further formality, all of the exclusive rights
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of a copyright holder. These, to quote the Copyright Act,
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include the exclusive rights to "reproduce the copyrighted work
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in copies" and to "prepare derivative works".
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To *register* your copyright, you must file an application with
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the Copyright Office. Getting the application and filing it is
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not difficult, and is a good idea. Here's how to get the
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application, how to learn to fill it out, and some related things
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software programmers should know.
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FIRST: GET THE APPLICATION
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The best way to get the application and learn how to fill it out
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is to write to the Copyright Office at this address:
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Publications Section
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Copyright Office
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Library of Congress
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Washington, D.C. 20559
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and ask for Application Form TX and Circular 61 ("Copyright
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Registration for Computer Programs"). The application and
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Circular are free.
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The Application must be accompanied by $20 and "deposit
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material", which is typically a print out of the source code of
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your program. Giving your source code to the Copyright Office
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makes it public, which is something you don't want to do if (as
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is usually the case) the code contains any of your "trade
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secrets". A trade secret, generally speaking, is confidential
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information that relates to your business. The confidential
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information need not be clever, but it must not be generally
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publicly known. You lose your trade secrets, among other
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circumstances, when you publicly divulge them, and when someone
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independently discovers them and makes them public.
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To enable you to register your copyright without
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surrendering your trade secrets, the Copyright Office permits
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deposit material to be less than all of the source code, and
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permits secret portions of the source code to be "blocked out",
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so long as the deposit material is any of the following:
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1. 1st and last 25 pages of source code, with portions
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containing trade secrets blocked out; or
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2. 1st and last 25 pages of object code, plus any 10
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consecutive pages of source code with no blocked out
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portions; or
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3. 1st and last ten pages of source code, with no block
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outs.
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If you are unclear as to what pages reflect the "first" and
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"last" of any particular program, use any reasonable system for
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identifying them in a consistent way. If the entire program is
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consists of less than 50 pages of source code, the deposit
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material should be all source code with trade secret matter
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blocked out. Whichever option you choose, more than half of the
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code on materials you send must *not* be blocked out.
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Is registering your copyright in software you create this simple?
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Almost! "Form TX", for instance, may not be the best one to use
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if your program principally generates original graphical images.
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And slightly different rules apply when your program doesn't
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contain trade secrets, and when you wish to register a revised
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version of a program you've already registered. You will find
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Circular 61 useful in answering these and other questions.
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SECOND: COPYRIGHT NOTICE
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Whenever you "publish" your program (by, for instance, distribu-
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ting copies of it to the public by sale, rental, lease or lend-
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ing), you should place a "notice of copyright" on each copy. The
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form of the notice is:
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Copyright [year first published] [name of copyright owner]
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If you prefer, you can use the "C in a circle" symbol rather than
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the word "copyright" spelled out. If you do, make sure the "C"
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really is in a circle, and *not* merely in parens, like this:
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(c). The notice should be placed on the software in a place it
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is likely to be seen, preferably on the disks containing the
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software and on the screen displayed when the program is started.
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Keep in mind that copyright *notice* and copyright *registration*
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are separate matters. As a result:
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1. You should use copyright notice when you publish your
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program whether or not you register your copyright in it.
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2. You should register your copyright whether or not you
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publish the program.
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3. The year in the copyright notice is the first year of
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publication, and is unrelated to the year you registered
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the copyright.
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THIRD: WHY USE NOTICE, AND WHY REGISTER?
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If you created your program on or after March 1, 1989, you don't
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lose your copyright in it even if you publish it without putting
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copyright notice on it. And, as mentioned, you own a copyright
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in software you write even if you don't register the copyright.
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So why use copyright notice? And why bother to register the
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copyright?
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The benefits of using notice include: (1) if the work is in-
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fringed, the infringer cannot claim its infringement was "inno-
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cent", and cannot get damages assessed against it reduced on that
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basis; (2) notice informs the public of who copyright owner is
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(which might be handy if someone wants to get a license from
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you).
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The benefits of registering the copyright include: (1) if
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you have to prove infringement, registration makes it easier to
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prove that your work was created first, (2) for works created in
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the U.S. (and certain other works) you have to register before
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you can file an infringement action; (3) registration may enable
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you to get statutory damages and attorneys fees if you should win
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an infringement action.
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FOURTH: WHEN DO YOU NEED ASSISTANCE?
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The above are general rules, and the information any particular
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programmer may need in a particular instance could be different.
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Here's examples of the circumstances in which an attorney's
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advice can be helpful:
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1. An attorney can help you decide if your program has any
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patentable elements. You might first consider, however,
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the League for Programming Freedom's convincing argument
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that software patents may be disastrous to the future of
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software development. The League can be contacted
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through CompuServe at:
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Internet:league@prep.ai.mit.edu
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2. If your program was developed jointly with others, you
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might want an agreement between you and your
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co-developers setting forth your respective rights as to
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distributing and further developing the program.
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3. If your program isn't wholly original (if it is, for
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instance, derivative of another's work, or if it incorpo-
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rates public domain code), you might want assistance in
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figuring out how to describe your program on the
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Copyright Office's form.
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4. When your software contains "trade secrets", you might
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want more information about how trade secrets are pro-
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tected.
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Charles B. Kramer, Esq.
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NY and IL Bars
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CompuServe 72600,2026
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(212) 254-5093
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Copyright 1991 Charles B. Kramer. Permission is granted to
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freely copy this file provided it is copied without alteration or
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amendment.
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