Copyright Confusion

This regular column is designed to give members of our community general legal guidance without the burden of huge attorney's fees.

The phenomenon of free and open-source software poses legal risks for software developers that challenge even experienced technology and licensing attorneys. This regular Q&A column is designed to give members of our community general legal guidance without the burden of huge attorney's fees. Send us questions about legal issues that concern you and the “geek” lawyer will try to answer them.

Do I need to put a copyright notice on my software?

—Laura Owen, Women.Com

Until 1976, copyright law imposed formal notice requirements. The failure of a copyright owner, through carelessness or inadvertence, to comply with the notice requirements caused the work to fall into the public domain. In 1976 Congress amended the Copyright Act to liberalize the notice requirement. Placement of a notice was still required, but if the owner neglected to do so, the defect could be cured by registration of the copyright and other actions within five years after publication. Then, in 1989, a new Copyright Act came into effect, bringing US law into compliance with the Berne Convention. For the first time, notice on published copies was no longer a condition of copyright protection. A copyright notice is still important, however. The Copyright Act, in section 401(d), provides that the presence of a copyright notice prevents a copyright infringer from claiming her infringement was innocent. That is, it prevents her from making the “I didn't know I was doing something wrong” defense. This has a major impact on potential damages for infringement. An “innocent infringer” may convince a court to reduce the award of statutory damages to $200, but a “willful infringer” can be held liable for statutory damages of up to $100,000. A copyright notice is easy to write. For most software, it consists of the following three elements: the symbol ©, the word “Copyright” or the abbreviation “Copr”; the year of first publication of the work; and the name of the owner of the copyright. Make sure your copyright notice is affixed to copies in such manner and location as to give reasonable notice of your copyright. Put a notice on disks or CDs containing your software, in documentation accompanying your software and on web sites from which your software is downloaded. A proper copyright notice, even though not mandatory, can have a big payoff if you ever have to enforce your copyright.

Can a software license restrict my ability to use software?

—Harry Adams, Oracle Corp.

Most software licenses are based on copyright law. The owner of a copyright in computer software has the exclusive rights to do and to authorize, among other things, the reproduction of the copyrighted work in copies. No third party can make a copy of software without obtaining the permission of the copyright owner. The word “copy” has a specific definition in the Copyright Act: copies are “material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device”. That definition creates a unique problem for software. The simple loading of a computer program into memory has been held to involve the creation of a copy, one of the exclusive rights of the copyright owner. So the mere act of running a program, and thus making a copy of the software in memory, can only be done with permission - unless we can point to another section of the copyright law that expressly authorizes the making of copies to use software. Congress resolved that problem in the Copyright Act of 1976 to allow software to be used when it added, in section 117, a limitation on the exclusive rights of copyright owners. Notwithstanding the other provisions of the law, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy of that program provided that such a new copy “is created as an essential step in the utilization of the computer program or in conjunction with a machine and that it is used in no other manner”. To the extent that software you license is protected by copyright, section 117 of the Copyright Act provides that you are free to copy the software into memory for execution, and thus to use it in the normal fashion for which it is designed. Be careful though. Proprietary software licenses can contain other restrictions on use. Those restrictions do not stem from the copyright law, but they are imposed in a contract (e.g., the license agreement) between you and the software provider. Free and open-source software licenses do not impose such abhorrent contractual limitations on use. When you use software made available under licenses approved by the Free Software Foundation (FSF) or Open Source Initiative (OSI), you can be confident that you can use the software freely, just as the Copyright Act provides.

Legal advice must be provided in the course of an attorney-client relationship specifically with reference to all the facts of a particular situation. Even though the answers given were provided by an attorney, they must not be relied upon as a substitute for obtaining specific legal advice from a licensed attorney.

Lawrence Rosen is an attorney in private practice in Redwood City, California (http://www.rosenlaw.com/). He is also executive director and general counsel for Open Source Initiative, which manages and promotes the Open Source Definition (http://www.opensource.org/).

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