By John Alec Stouras
The pandemic has forced lots of businesses to get online. Copyright issues get magnified because of the amount of infringement that can happen online. When I say the word "copyright," you have immediate mental imagery of specific works that are ubiquitous with copyright filing. You think books, music, films, the whole media market. But, copyrights are a defense that can be utilized a lot more than that. It can defend coding text as well, and this is especially important if you have software and code.
Knowing the registration, place, and the function of copyright is especially crucial for creators like you! I will keep things as simple as possible as to avoid confusion with all the legal discussion that is going to take place.
Considering you are likely stuck at home for a while due to the pandemic, you may be getting your tech-fingers rolling on great new software ideas and putting it down on your computer. If you have put in on your computer and started launching it, you might want to know a little bit about copyrights. Where good people are willing to help you on a project, there are bad people who are willing to find things to take from someone. And copyright is sometimes the most robust defense against these types of bad actors.
What Is the Federal Copyright Act? And How Does It Apply to Software?
The framework for copyright law was created in 1976, called The Copyright Act of 1976, a beautiful no-thrills title. Copyright is, in general, governed by federal law; a copyright is registered through the Copyright Office at the Library of Congress. Copyrights are meant to protect original works of authorship fixed in a tangible medium of expressions (17 U.S.C. § 102). There has been a lot of debate over whether software, like computer programs, could receive a copyright back in the day. But now they can be and they are considered a literary work in the case Apple v. Franklin Computer Corp. This is excellent news for programmers and inventors.
So, copyright protection is automatic. It's like magic! This means, if you put your idea into a tangible medium, in this case, your code and create your software, you are protected. But, if you are automatically protected, why should you even spend the small amount it costs to register a copyright and do the paperwork?
Wait, So Not Like Magic?
You should register because it's not like magic. Not only is it recommended to register a copyright, it, in some cases, should be considered required. Since the Supreme Court decision Fourth Estate Public Benefit Corp v. Wall-Street.Com, L.L.C., they mostly held that a copyright owner has to obtain a registration certificate before filing a copyright infringement suit. So now, copyright registration is an even bigger deal. It used to be, generally, that you could bring a suit without one, but now it is a necessity.
So that brings us to the enormous question, how do you even register a copyright?
Registering a Software Copyright
Copyrighting some things is relatively straightforward, such as music composition and recordings or films. You'll need a couple of things; you'll want both your code and screen-captures to submit to Copyright.gov. If you have a finished product like a video game, you can already register it as an audiovisual work. If its predominantly code, you're going to want to register it as a literary work.
Well, let's say you haven't completed the work . . . can you still register a copyright? The answer is kind of yes! The Copyright Office explicitly lets you know "preregistration" is NOT a replacement for actual registration. It is still an excellent method to protect you from copyright infringement in the meantime. Preregister at Copyright.gov online, and they will contact you with a number. Just register your work when it's finished and they will give you a small window to do so.
So, let's talk about the steps of registering a software copyright online.
1. Select Electronic Filing On Copyright Office. The fee is going to be about 35 dollars. Submit either Online PDF and/or a hard copy. If it is already a completed published work, you have to submit a hard copy to the Copyright Office.
2. Trade Secrets?: You likely have trade secret or proprietary algorithms in your software program. If so, you are required to submit a statement stating the source code contains trade secrets.
3. Submission of Code Requirements: You can submit the first and last ten pages of source code if they do NOT include trade secrets. You may also send any consecutive ten pages of source code without ten pages, and the first and last 25 pages of object code will suffice. Also, you can submit the first and last 25 pages of source code with the trade secret/proprietary information blacked out "redacted." You can include screenshots as well.
If you are not in tune with the area of computer science, I'll describe them here in a little meander from our copyright discussion. If you do know a bit about the differences, then you can just skip the next paragraph.
In simple terms, Source Code is the code a programmer writes to allow the program to run. In contrast, Object Code is what happens to the source code after it is run through a compiler, so machines can read it and perform the code itself. The compiler is essentially a translator between humans and machines in this case. The difference is essential for the third step (submission requirements) because the page requirements ask about what code needs to be submitted.
You may think, why should you include screenshots of your program? It is because, as described by The Law Office of David McEwing, the screenshots can provide legal protection for the "look and feel" of your displayed software.
Now, you can wait for the Copyright Office's response and soon breathe easy about having a copyright on your program. Let's talk about the special handling option for a copyright.
Special Handling Process via Copyright Office
The Copyright Office has a special handling service for an expedited process of registering a copyright. You may need this if you feel your copyright is already being infringed. The special handling services have to be approved, and the Copyright Office has laid out some reasons when it is granted: pending or prospective litigation, customs matters, or contract/publishing deadlines that necessitate the expedited issuance of a certificate (click here for the Copyright Office F.A.Q.'s). The fee is quite larger then registering a copyright the ordinary way and should only be used in litigation circumstances.
A Software Copyright and Disclosure Notice
Registering helps, but you want people who have your software to know that you own the copyright. This is why a software copyright and disclosure notice is critical to have. Remember, the end goal isn't to win a lawsuit; the end goal is not to have a lawsuit occur in the first place. If you are distributing the source code, you're going to want to make sure the copyright and disclosure notice is paired with it. Also, if you are giving physical copies of your software, having the notice paired with those is essential.
A copyright notice itself is the beautiful little thing you usually see on websites at the bottom that, for example, state "©, 2020, J.A.S. L.L.C.". It’s relatively easy to meet the U.S. Copyright Office requirements, as there are only three elements: the copyright symbol or the word "copyright," the published year, and the owner. Everything has to have the notice, the physical copies, the code, your web page, etc. Also, post it on your programs start-up screen; you do not want anyone having the excuse that they didn't know anyone owned the copyright.
Further, a copyright notice is usually accompanied by a legalese statement that describes the copyright license, permissions, and enforcement, etc. You will want a lawyer for that part of the process.
So, now that you are registered and placed your copyright all over, what happens if someone infringes on your copyright?
If Someone Infringes, What Options Do I Have?
If someone has infringed on one of your works, the first step is to send a cease and desist letter. You'll first want to gather evidence about when, how, and what the unauthorized use was. So, make sure you have your screen capture macros ready. If it was via a webpage, use the Internet Archive to show the page. They are relatively easy to write, and you can find a template here. Send it in certified mail, and seeking legal recourse will be the next step afterwards.
The legal recourse is for sure going to be the main reason. At the same time, you'll want to have registered a copyright. It used to be that you can only recover some damages if you weren't registered, but the Supreme Court decision stated above now has made that even in doubt. So, make sure you register! The registration is needed, but the registration gives you access to statutory damages, which can be extremely high such as even to $150,000 infringement.
I want to quickly address a common misbelief about self-mail copyright before we conclude.
What About Sending It To Myself To Copyright?
There is a pretty commonly held belief that if you send a copy of the work to yourself, it counts as a copyright. The idea was that you'd put it in the mail, address it to yourself, and it'd come back to you. Even in my undergraduate school, I heard about this type of copyright method, but we also learned it was unreliable. So, it sort of is a thing, but it is not a reliable way to register a copyright, and it won't provide you legal protection.
Filing a copyright can be done by yourself, and the steps above will get you started. Also, Legalucy has a process that can help you file your copyright and find legal counsel in the event you feel your copyright has been infringed. You can find that at Legalucy's main website for steps. Intellectual property lawyers around the country are always there for assistance. If you are dealing with litigation issues, big firms can levy an awesome amount of resources to protect you from infringers. Some examples of firms that are large that deal with Copyright issues are Cooley, Knobbe Martens, and Morrison & Forrster. Smaller firms also have benefits. Many of them provide free consultation services. Some smaller I.P. firms in the California Bay Area are QWCooper, Ascendant I.P., and Fergus' Law Office.
Programmers deserve protection just like anyone else, so utilize the power of the copyright! You'll need it.
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