Date : Sun, 22 Aug 1982 02:11:00-EDT
From : Keith Petersen <W8SDZ@Mit-Mc>
Subject: COPYRITE.TXT
Forwarded from my RCPM system:
----
COPYRITE.TXT
August, 1982
Copyrighting Public Domain Programs
by
June B. Moore, JD
Member, California State Bar
32 Salinas Avenue
San Anselmo CA 94960
(415) 456-5889
Also: Marin RBBS
(415) 383-0473
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 indis-
criminate use of the word confuses the copyright issues. A work dis-
closed 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 with-
out 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 tres-
passes 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 prop-
erty. 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 Copy-
right 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 con-
tinuation of the license except as to the parts added by the author
of the derivative works. A simple explanation might help: A pro-
gram provides for generating data showing ratios for sales to in-
ventory 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 com-
mercial 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 copy-
righted (that is, contained no copyright notice and were not regis-
tered 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 con-
siderably but generally the rule is that, if the work was not dis-
tributed 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 Copy-
right Office and the state laws no longer apply. The federal law "pre-
empted" the state laws on that date. But the federal rules apply across
the board ONLY to works first "fixed" or "written" after that date. How-
ever, 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 organi-
zation 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