Computer Software and Copyright

11. So What Is Copyright Protection?

While an author may establish a copyright at fixation, he does not necessarily establish the right to sue for infringement of that copyright. Generally, in order for the author to sue for copyright infringement, the copyright must be registered with the U.S. Copyright Office.

If the copyright is registered within 3 months of publication, then the author may be able to recover statutory damages or attorney's fees, in addition to other relief, for infringement that began before registration.

In addition, registration of a copyright within 5 years of publication will compel the court to give the registered owner the benefit of the doubt as to the validity of the registered party¹s ownership in a court case, unless the other party can prove otherwise. The other party will have the burden of proving that the registered owner does not have a valid copyright.

Finally, the combination of registration and proper notice will remove the defense known as "innocent infringement" from a defendant and the court will assume that the world had been put on notice that the work was copyright-protected.

Therefore, if a computer program is going to be commercially marketed or otherwise distributed to the public, it is usually a good idea to pursue federal registration.

11.1 Publication

If a programmer distributes a computer program to a limited class for a limited purpose, such as other programmers in his department for testing or only to members of the Physics Division for beta testing or to outside testers under a confidentiality (or nondisclosure) agreement, it may not be considered publication.

However, if multiple copies of the computer program are available for distribution to the general public, the sale or lending of a single copy may constitute publication.

An Example

Let¹s say our friend Cliff Cybercop enters into negotiations with several companies to license his Antihacker program. He sends the companies a copy of the source code along with a nondisclosure agreement for evaluation. This would not be considered publication. Furthermore, if he also sends a copy of the source code to friends at other national labs or universities for beta testing, this may also not constitute publication.

Now let¹s say that Cliff decides his program is perfect and license offers fail to impress him. He places a notice on the internet that the Antihacker program is for sale, even though he has only 2 copies. He gets one order and sends off a copy to the requester. This may constitute publication. This is so even if he gave the copy away, so long as he had more than one copy and made them available to the general public.

11.2 Unpublished Computer Programs

* Written by John E. Wehrli, formerly of the Patent Department, Lawrence Berkeley National Laboratory. Available as LBL Report No. 38995.