Programmer's ROM - The Computer Language Library/programmersrom.iso/ada/general/copyrite.doc

Text File | 1988-05-03 | 22.4 KB | 421 lines

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                COPYRIGHT INFORMATION
                        FOR
                COMPUTER SOFTWARE HACKS

                        from
                  June B. Moore
                  Attorney at Law
                  32 Salinas Avenue
                San Anselmo CA 94960
                Ph 415-456-5889 (after 5:30 pm)


        Writers  of  software  programs  that  are being placed on the
various bulletin boards with permission to users of the board  to  use
the  programs  for  non-commerical purposes should mark those programs
as:

                (c)  1981 John Smith

        It is not necessary to register the work  with  the  Copyright
Office  in Washington, D.C.  to get copyright protection.  In fact, it
is not necessary to put the copyright notice on to get protection, but
the  notice  is  required  if  you want to sue for infringement, as is
registration with the Copyright Office.  If the omission of the notice
was  inadvertent  or distribution was for a limited purpose only (like
to one's family or a friendly group  getting  together)  the  lack  of
notice  does  not  cause any harm.  However, the absence of the notice
will allow anyone who copies your program to claim it  was  placed  in
the  public domain for all to use for any purpose.  Only the copyright
can be licensed and if the other fellow doesn't know you are  claiming
a copyright, he can claim innocence in this copying.

        Registration is simple.  Just send a note off to the Copyright
Office,  Library  of Congress, Washington, D.C.  and ask for the forms
needed to register a computer program.  They will send you  a  package
of  stuff which will include the forms and instructions on how to file
for registration.  Fill out the form, send it back with two copies  of
your  printout showing the copyright notice on it and $10 and soon the
Copyright Office will send you a certificate  saying  the  program  is
registered.

        That's all there is to it!

        Copyright should not be confused with patent.  Patents have to
be original invention and protect the idea embodied in  an  object  or
machine.   Copyright  protects  any  kind  of  a literary, musical, or
artist work, including all kinds of graphics and sculpture.   It  also
protects  recorded  audio  and  visual  works such as phonorecords and
videotapes and films.

        Neither  type  of protection guarantees no one will steal your
effort, any more than the police department  guarantees  no  one  will
burgle  your  house.   The  law  against  burglary and the law against
copyright infringement, however, give the owner of the  house  or  the
copyright  a  kind of right to recover from the thief.  Better chance,
too, in the case  of  a  software  thief  who  copies  for  commercial
purposes!

        A copyright will not protect your fine idea for  bit-twiddling
it  will  protect  your expression of it that is, no one can copy your
program directly although they can do some bit-twiddling themselves to
accomplish  the  same  purpose  you aimed at.  For example, no one can
copyright the idea of the play "Romeo  and  Juliette"  of  a  pair  of
lovers  whose families are feuding.  But Romeo and Juliette could have
been copyrighted by William Shakespeare and anyone who used his  lines
in  another  play  about  the same thing or a similar thing would have
infringed his copyright.

        Is that clear?  Or just confusing?  Well, Einstein's theory, E
= MC*C could  not  be  either  patented  (it  is  a  natural  law)  or
copyrighted  (it  is an idea) but Albert's book about his theory could
be, was, and is copyrighted!

        If  it comes down to protecting you program through a lawsuit,
it is  necessary  to  have  the  notice  and  the  registration.   The
registration   is  prima  facie  evidence  of  the  validity  of  your
copyright.  And should you succeed  in  proving  your  copyright,  the
court  will  issue  an injunction against a copier without permission,
will ultimately give you either his profits, your losses  (should  you
start  selling  the  program yourself), and your attorney's fees if he
was an intentional infringer.  It could be a good  deal  for  you,  if
your  program  is really great and some that I have seen on the CBBS's
are great!

        If  I can help with advice - but not filing lawsuits - drop me
a note on the Mill Valley RBBS (415-383-0473) or to the above address.
I  don't  practice  law  I  write about it and copyright is one of the
areas I write about.

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Date: Thursday, 12 April 1984  00:58-MST
From: Ron Fowler
To:   All
Re:   INFO-COPYRIGHT AM DIGEST: APRIL 12, 1984

[ copyright (c) 1984 Ronald G. Fowler ]


        There  has  been  some  controversy   lately   regarding   the
distribution  of  public domain software with respect to the copyright
law.  I've done some preliminary research, and thought  I'd  share  my
findings with the group.

        Specifically in question has been Irv Hoff's copyright of  his
MDM modem series, especially as it relates to Ward Christensen's orig-
inal work and Mark Zeiger's extensive  enhancements  to  the  program.
Prevention  of  "profit-taking" and sale of public-domain software has
also been discussed.

        Fundamental to securing copyright protecton is the publication
of a work;  generally  you  may  copyright  unpublished  work  without
restriction  (i.e.,  you  don't have to maintain a copyright notice in
the work).  Legally, 'publishing' is the "distribution of  copies  ...
to  the  public, by sale or other transfer of ownership, or by rental,
lease or lending".  I think we can safely say that work distributed by
SIG/M and the CPMUG can be deemed legally "published".

        Both the old (1909) copyright law and the new (1978) require a
that  a copyright notice be placed in the work, in order to secure the
copyright.  While the newer law addresses procedures for  omission  of
this  notice  (in  order  that  a  mistaken omission not cause loss of
copyright protection) the older law did not.  Work published prior  to
1  January,  1978  falls  under the jurisdiction of the older law.  In
fact,  Copyright  Office  Circular  "R1"  specifically  mentions  this
circumstance:

        "If a work was published under the copyright owner's authority
before  January  1,  1978,  without  a  proper  copyright  notice, all
copyright protection for that work was permanently lost in the  United
States.  The new copyright law does not provide retroactive protection
for those works."

        Now  MODEM2  was published by CPMUG, without copyright notice,
in 1977.  So much for any claim poor Ward might have.

        MODEM2 is therefore unquestionably in the public domain.

        (Note that the  terms  "copyright"  and  "public  domain"  are
mutually  exclusive,  under  the law.  "Public domain" is work without
copyright, either by  expiration  of  an  existing  copyright,  or  by
forfeiture  of  copyright  by  the  author.   Hence, a disclaimer like
"Copyright (c) 1984 by Calvin  C.   Codehacker:   contributed  to  the
public  domain,  may  not  be sold commercially" is a contradiction in
terms, and may very well jeopardize the author's right  to  copyright.
For  that  reason,  I  *never*  refer  to  the  "public domain" in any
programs I introduce to the user  community  for  which  I  desire  to
retain copyright protection).

        (Side note:   there  is  absolutely  *nothing*  to  prevent  a
commercial  interest  from  selling  public  domain  work,  legally or
ethically.  Have you ever seen an anthology of Edgar Allen Poe,  or  a
recently  reprinted  "Moby  Dick",  both of which have fallen into the
public domain?  Has sale of these caused any kind of public outcry  of
"ripoff!"?  Think about it...)

        Back to MODEM2 and MODEM7:   Zeiger  and  Hoff's  enhancements
have been published (SIG/M, I believe) after 1 January, 1978, and thus
fall under the jusrisdiction of  the  1978  law,  which  provides  for
"derivative  work".   A  "derivative  work" is "a work based on one or
more preexisting works".  This seems to be subject to copyrights  held
by   the  author  of  the  previous  work,  but  is  not  spelled  out
specifically in the material I've seen so far.  I'd  hazard  to  guess
that  Hoff  and  Zeiger  are on pretty stable ground, though, *unless*
either has failed to actually secure the  copyright  by  registration.
That's where things begin to get a little shaky.

        Generally, you don't have to register to claim copyright;  you
can  register  anytime  within  five  years  of  publication and still
establish prima facie evidence in court of the copyright's validatity.
There  is  a  "gotcha" though:  if the work is not registered within 3
months after publication, then no statutory damages or attorney's fees
are available to the plaintiff in an infringement suit.  In this case,
only actual damages and lost profits  are  available,  and  in  "free"
distribution  software,  there are very little damages indeed (perhaps
if  the  author  is  a  professional  who  receives  value  from   the
circulation  of  his  name  in  "free"  software,  the  loss  of  that
circulation could constitute a damage....).

        Now  I  think  we have a clear idea of how to proceed with new
"freeware":

        1.  Claim  copyright  in  the  published  work  (copyright
            circular "R61" suggests  placing  the  notice  in  the
            program's sign-on message, if it has one.  By the way,
            this pub is specific to computer software).

        2.  Do  not  fail  to actually register the copyright with
            the Copyright office, within 3 month of publication.

        3.  Never  mention  the  public domain in relation to your
            work.

        With  these requirements met, the software is protected to the
extent that you can confidently proceed  legally  against  infringers,
including  attorney's fees and statutory damages.  Merely by virtue of
your authorship (and, of course, your copyright).

---------

        Interesting aside:  if you publish  work  with  the  Copyright
notice  included,  you *must* deposit a copy with the Copyright office
for the use of the Library of Congress; failure to do so can result in
fines  and  other  penalties.  (Note that there are certain exceptions
and modifications to this rule for various types of copyright works).

        Also:  Forms  are  available  from  the  U.S.  Government
               Copyright Office:  dial [phone].   Ask  for
               form TX and Circulars R1 and R61.  The cheapskates
               will only send you five TX's for one phone call.

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                        COPYRITE.TXT
                        August, 1982

            Copyrighting Public Domain Programs
                             by
                      June B. Moore, JD
                Member, California State Bar
                      32 Salinas Avenue
                    San Anselmo CA 94960
                        [phone]
                       Also: Marin RBBS
                        [phone]


        There  is  concern  about the copyright status of the programs
provided by innovative and diligent members of the CP/M Users Group to
the Group with the understanding, explicitly stated or otherwise, that
the programs were contributed to the "public domain."

        The  term "public domain" means, from a legal point of view, a
program or other work that does not have  copyright  protection.   The
indiscriminate  use of the word confuses the copyright issues.  A work
disclosed to a specific group of people for a limited purpose  is  not
necessarily "public domain" software.

        A new federal copyright law went into  effect  on  January  1,
1978,  which  complicates  the  following discussion for that software
written and/or contributed prior to that date.  I will  start  with  a
discussion  of the law as it applies now and to programs written after
January 1, 1978.  The new law is Title 17, U.S.  Code.

        Any  written material (including computer programs) fixed in a
tangible  form  (written  somewhere,  ie  a  printout)  is  considered
copyrighted  without  any additional action on the part of the author.
Thus, it is not necessary that a copy of the program be deposited with
the  Copyright Office in Washington for the program to be protected as
copyrighted.

        A contribution of a program to the members of the public (CP/M
Users Group) for their noncommercial use  constitutes  a  license  for
that  purpose  and  that  purpose  only.   It  does  not  destroy  the
programmers rights in the copyright  to  the  program.   HOWEVER,  the
government  does not enforce the programmers rights.  A copyright is a
property right, just like the right you have in the house you own.  If
someone  trespasses  on  your  property, the cops may come and put the
fellow in jail, but they will not stop him from  doing  it  again  nor
will  they  procure  compensation for any damage the intruder may have
done to your property.  You have to  do  that  yourself  by  going  to
court.   So  it  is  with copyrights.  In order to prevent anyone from
selling your programs you must ask a court (federal) to stop him by an
injunction  and  to give you damages for the injury he has done to you
by selling the program.

        Going  to  court  requires that the program be registered with
the Copyright Office in Washington,D.C.  The fee is $10.

        The    government    will    prosecute    CRIMINAL   copyright
infringements, such as where someone simply copies (as in  copying  an
audio  or  videotape)  for  profit,  and  when the government can show
criminal intent (ie, knowing violation of the law or fraud in the acts
of  the  copier).  This is not done very frequently except in the case
of wholesale audio and video taping pirates.

        The  copyright law has a concept known as a "derivative work."
A derivative work is one which is based on a work already entitled  to
and  protected  by  copyright.   The original author of a work has the
sole rights to "derivative" works  derived  from  his  work.   He  can
authorize  (license) others to prepare derivative works from his work,
as in the case of a programmer of a Users Group program who  says  "If
anyone  fixes this for a DCHayes MM-100, let me know."  I suspect that
many of the programs contributed to the Group and their  modifications
fall  within this category of license that is, users have been allowed
to prepare derivative works.  However, the original  author  does  not
lose  his original copyright!  And all the derivative works made using
the original are dependent on the continuation of the  license  except
as to the parts added by the author of the derivative works.  A simple
explanation might  help:   A  program  provides  for  generating  data
showing ratios for sales to inventory turnovers (I know the example is
silly), and the output is simply  a  bunch  of  numbers.   The  second
programmer  decides to enhance the program by turning the numbers into
some kind of chart or graph.  The program that generated  the  numbers
is protected as to the original author.  The output formatting ONLY is
protected as a license derivative work to the second programmer.

        The  restriction  placed  on  the  programs  in  recent  years
limiting use to individuals on their personal machines and denying use
of  a  program for commercial purposes is probably a valid restriction
of  the  license  granted  in  the  CP/M  Users  Group  Library.    It
constitutes fair warning to all who would lift the program and attempt
to convert it to commercial purposes that such use  is  not  licensed.
It is not clear that such restriction applies automatically to earlier
donations to the Group, unless there  is  something  explicit  in  the
documentation that accompanies the work itself when it is distributed.

        In many instances, the programs donated prior to 1978 were not
copyrighted  (that  is,  contained  no  copyright  notice and were not
registered with the Copyright Office).  The status of  these  programs
is  not  clear,  although  a case can be made that they were initially
distributed only to paid-up members  of  the  CP/M  Users  Group.   My
documentation  from  the  Users  Group,  which is undated but which is
postmarked June 13, 1978, states "The material [donations of programs]
is  received  by the Group with the understanding that the contributor
is authorized to make it available to hobbiests for  their  individual
non-commercial  use.....Members  receiving  material  are free and en-
couraged to share it with other hobbiests for  their  individual  non-
commercial  use."   The  membership information included a request for
any  member's  knowledge  of  persons  violating  the   non-commercial
restriction  on  the programs distributed.  A membership fee of $4 was
charged for 1978 as a prerequisite to receiving material.

        This  limitation  on the prospective use of a program obtained
from the group indicates that the distribution  was  limited  to  non-
commercial  users.   Pre-1/1/78  software  that  was not automatically
copyrighted and did not contain a copyright notice could be  protected
only  under  state  laws  in  existence  at that time.  The state laws
varied considerably but generally the rule is that, if  the  work  was
not  distributed  willy-nilly  to  the public without restriction, the
state law protected the work even if the federal law niceties were not
complied  with.   The  problem  is  whether  the  restrictions  of the
CP/Users  Group  distribution  were  sufficient  limitations  on   the
"publication"  of  the  program.   Publication  destroys  a  state law
copyright, making the work free  to  all.   "Publication"  here  means
making  it  available to the public at large, even though restrictions
were placed on  the  initial  disclosure  of  the  program.   That  is
something  only the court or jury actually hearing the case can decide
and may well turn on facts not available to me.  For example, was  any
real  effort  made  to  prevent  computer stores from distributing the
programs to their customers who were not members of the  Group?   Were
the  non-commercial  use limitations explained to those customers?  To
the computer stores?

        One  other concern has been expressed by some program authors,
those authors who have desired not to have their programs modified but
whose  programs  have  nonetheless  been  modified.   Referring to the
discussion above about the limitations on use of contributed programs,
if the limitation did not authorize anything but "use" of the program,
then the modifications constituted "derivative" works  that  were  not
authorized.   This,  unfortunately,  would  be  a very tricky thing to
prove, and it would have to be proved how did the  parties  understand
the  authorization to use the programs (ie, was modification prevented
but noncommercial use allowed?).  If there was an implied  license  to
modify  (for example, because the program was included with other pro-
grams in which modifications were explicitly authorized), it might  be
very difficult to prove infringement under either the state or federal
law, depending on which was applicable.

        It should be clear from the above, however, that modifications
of programs entitled to copyright protection are infringements if they
are  not  authorized  by  the  owner  of the copyright in the original
program.  The problem is in the proof of lack of authorization.

        Since  January  1, 1978, all programs are protected by federal
copyright laws without regard to copyright notice or registration with
the  Copyright Office and the state laws no longer apply.  The federal
law "preempted" the state laws on that date.  But  the  federal  rules
apply  across the board ONLY to works first "fixed" or "written" after
that date.   However,  improvements  or  modifications  in  one's  own
program can qualify for federal copyright protection under the new law
and perhaps those interested or affected by the  problem  should  make
formal  registration of their works as well as including the copyright
notice somewhere in the program.

               ----------------------------------

        It is obvious that most volunteer programmers do not have  the
finances  or  time,  or inclination for that matter, to pursue a legal
remedy in the courts.  At the same time, they do not want the software
they  authored  to  be used by others for commercial gain without some
control over its use.

        I suggest that microcomputer software authors nation-wide form
an organization similar to that of ASCAP or BMI, although on a smaller
scale,  to  monitor  improper uses of software donated to the hobbiest
for personal use.  Only through concentrating the efforts and power of
all   authors   can  real  protection  be  obtained.   Otherwise,  the
unscrupulous vendor is going to take his chances that  the  individual
programmer will not or can not defend his copyright.

        Such a group might be formed with the  support  of  an  active
computer  group  like  the  NJ  Amateur Computer Group or the Homebrew
Computer Club in California.  Or it could be established independently
if  there  were sufficient interest and an organizer could be found to
do the necessary paperwork, collect the dues needed to provide  a  war
chest,  and  hire  the  attorneys  and  other  persons  necessary.  It
wouldn't have to be a full time job for anyone but it would have to be
more than volunteer activity.

        My suggestion appeared (anonymously) in an article in the July
1982  Microcomputing.   I  am  not  interested in doing it, although I
would cooperate with any efforts along these lines  with  counsel  and
advice.

        I suggest, however, that an early attack, which might  include
programmers for profit whose programs are slightly modified by fly-by-
night vendors without  compensation,  will  establish  the  principles
necessary to deter future invasions of your copyrights.


                                        June B. Moore, JD
                                        Member, California State Bar