by Gerry J. Elman
Gerry J. Elman, J.D., is a Philadelphia lawyer who practices in high-technology matters. He is a member of the Computer Law Reporter advisory board and a contributing editor of Personal and Professional magazine for users of DEC microcomputers.
Ever since I began writing a program for the IBM PC, I've been worried that the pirates will start their disk drives humming and make the money that should be coming to me. When I looked into protecting my precious program, I discovered that I had several choices, including physical techniques along with a few legal strategies.
The problem with the ever more sophisticated physical techniques for copy protection is that an "arms race" has developed. Certain hackers see each new system as just another mountain to conquer "because it's there," while software entrepreneurs have stressed the need for new methods to secure their programs while still allowing legitimate users to make copies. So many publishers have expressed this need that an industry organization, the Association of Data Processing Service Organizations (ADAPSO) in Arlington, Virginia, has set up a clearinghouse to keep track of them.
Each of the physical anti-piracy schemes has its own loopholes and drawbacks. As a writer of software, what else can I do to protect my investment of time? How can I ensure that the people who benefit from my creation will pay me for it?
Since long before computers, there have been three distinct legal strategies for protecting the results of one's intellectual effort from unwanted appropriation by others: 1) copyright, 2) the government's grant of a patent, and 3) keeping it a trade secret. Copyright and patent law starts with this passage from the Constitution: "The Congress shall have Power ... To Promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...... Congress and the courts have sorted out two fields of law from this one constitutional provision. Copyrights apply to the "writings" of "authors"; patents apply to "discoveries" by "inventors." But if you create a new computer program, are you its author or its inventor? The answer is: maybe either, possibly both.
Copyright and Copycats
Copyright protects an original form of expression, but it does not cover any process, system or method of operation. What does this mean for computer software in the United States? If there are several ways to say the same thing, or to write a program to accomplish a very particular result, a copyright will protect my unique expression of that general thing but will not allow a monopoly on every way of saying or doing that thing.
Until just a few years ago, it was an open question whether copyright could protect writings published in a form that a person couldn't read. For example, this text was stored as tiny magnetic domains on a diskette. Of course, there's no way to look at the diskette and figure out what it says.
In 1976 Congress solved this problem by passing a revision of the Copyright Law that protects original works of authorship "fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly, or with the aid of a machine or device." Text that is written magnetically on a diskette is "fixed" even though it can be erased and rewritten, like a manuscript in pencil. The diskette is the "tangible medium of expression" from which you can perceive the text, either on a screen or as a printout, using a "machine or device" (your personal computer).
What do you have to do to copyright a program? At first, nothing special. Before the new law took effect in 1978, a federal copyright didn't exist until a work was published with a copyright notice on it. But now the owner gets the copyright at the time the work is created, automatically and without lifting a finger. Usually the author or co-authors own the copyright, even if somebody pays them as a consultant. However, if you write something for your employer within the scope of your duties at work, the employer owns the copyright and we say that the writing or program is "made for hire."
After publication, the work must contain a prominent copyright notice. If the work is a program on a disk or cassette, the notice should appear on the label. It should also be coded into the program so that it appears on the video screen when the program is started up.
A copyright notice consists of three things: either the symbol © or the word "copyright," the year of publication and the name of the copyright owner, usually the author. The word "copyright" is enough for the first element of the notice, but it's helpful to include the © symbol, which provides additional rights in certain foreign countries that have signed the Universal Copyright Convention. The UCC expressly adopts this symbol, but not the word "copyright," apparently to bridge differences in language.
What if you don't have the © symbol in the character set of your printer or video screen? While a lot of programmers are using the letter "C" in parentheses, whether courts here or abroad will judge it the equivalent of the © is at this point anyone's guess. Including the word "copyright" in your notice will at least ensure that you're as fully protected as you can be in the United States.
The words "All rights reserved" don't do anything extra under U.S. law, but they do trigger another treaty: the Pan-American Copyright Convention. So if you're interested in south-of-the-border, put in a "rights reserved" clause.
Copyright registration is relatively cheap: all you have to pay the government is $10. To register a computer program, send a listing of your program code along with a completed Form TX. (The form is available from the U.S. Copyright Office, Library of Congress, Washington, D. C. 20559.) If your program is long, it's enough if you send only the first and last twenty-five pages. Registering your copyright gives you life plus fifty (or a flat seventy-five years in the case of a work for hire). This is not a jail term, just the length of your exclusive protection: the life of the author plus fifty years, which is a lot longer than most of today's computer programs are expected to be around.
What do you do if a pirate copies or sells your
program after it's registered with the Copyright Office? You can start
a suit in federal court, and if the court finds in your favor they
might issue an order stopping all further distribution and use of the
program. The court might even order that all pirated copies be
impounded. You might be able to get money damages from the infringer
based on lost sales and on the infringer's profits. It's also possible
for the court to award you as much as $50,000 if the infringement was
committed willfully, plus the costs of suit (including a reasonable fee
for your attorney).
Copyright infringement is a criminal offense, which could mean prosecution by the local U.S. attorney. If convicted, the infringer could be fined up to $10,000 and even sentenced to a year in jail. He would also be ordered to forfeit to the court for destruction all infringing copies of the program.
To make it even harder on the pirate, the Copyright Law says he can also be ordered to forfeit to the court "all implements, devices, or equipment used in the manufacture of such infringing copies." Does this mean that someday a pirate's microcomputers might be delivered to the court and destroyed? Time will tell.
Patents and Trade Secrets
A patent is a seventeen-year right to exclude anyone but the patentee from making, using or selling in the United States the subject matter of an invention. Things that can be patented are new or improved processes, machines, articles of manufacture and compositions of matter. During the 1970s people didn't get very far trying to patent computer programs as processes, but they had a bit more luck with the idea that a computer with a program in it is a special kind of machine. Nevertheless, for several years it seemed most computer programs would never benefit from patent protection.
Recent court decisions have been more encouraging. As long as the program is new, useful and not obvious to one of ordinary skill in programming the relevant systems, patent claims that meaningfully cover the innovation are more frequently obtainable. But the lion's share of programming techniques are not covered by patents. Instead they are protected as trade secrets. Unlike patents and copyrights, trade secrecy is not a branch of federal law, but part of the common law of each state. The idea is that if you have certain important business information that you keep secret, telling it only to your employees and others who agree to keep it confidential, you can sue people who violate the confidential relationship. You could get a court order keeping them from using the information, at least for a certain period, and you might also get some money if you can show that their misconduct hurt you financially.
Often there's a way to have your cake and eat it too. If your program is written in a language that must be compiled before it can run on your computer, you will in effect have two versions of it. The version you write is called "source code"; if you've done a careful job, it's usually pretty easy to read it and understand the clever programming techniques you used. However, when you put your source code as input into the compiler program, what comes out is called "object code." The object code should be fine for running the computer, but it's a machine language-not a programming language-and therefore very tough to interpret.
If you sell only the object code, you're likely to be able to treat the source code as a trade secret. And the object code would be the thing you register with the Copyright Office.
One other symbol deserves mention:® for registered trademark. Trademarks are brand names or logos that enable customers to distinguish goods that come from one source or maker from those that come from a different source. They don't protect ideas or intellectual property as such, but they do help you get what you want in the marketplace.
Trademarks are protected by an overlapping body of state and federal law. The ® symbol is used to identify a trademark that has gone through a complex registration process in the federal Patent and Trademark Office. This process is intended to assure that the mark will not cause confusion with other trademarks that have already been registered.
Until your trademark has gone through this process and is issued a registration number, you must not use the ® symbol. This requirement causes incredible confusion, because the opposite is true for copyrights, which have the similar-looking © symbol.
The copyright notice must appear on every published copy of the work. According to the law before 1978, if a few copies of the publication had been issued without the copyright notice, you'd placed the work in public domain and forfeited any possible claim to protection. Under the new law, you might be forgiven for an inadvertent failure to use the copyright notice in the beginning, but you must put it on all copies you issue in the future and make a reasonable effort to get it placed on the other copies you've distributed.
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