609 lines
23 KiB
Plaintext
609 lines
23 KiB
Plaintext
.\" @(#)copyright.mn 6.1 (Berkeley) 5/26/86
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.\"
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.ds .f copyright.mn
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.ds h0 "Copyright Law
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.ds h1
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.ds h2 %
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.ds f0 "\*(vr
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.ds f1
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.ds f2 "February 26, 1986
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.mt
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Copyright Law
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.au
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Jordan J. Breslow
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.ai
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1225 Alpine Road, Suite 200
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Walnut Creek, CA 94596
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+1 415 932 4828
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.bt
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.fn
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\(co Copyright 1986 Breslow, Redistributed by permission
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.ef
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.pg
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I am an attorney practicing copyright law and computer
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law. I read a series of queries in net.legal about
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copyright law and was dismayed to find that people who
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had no idea what they were talking about were spreading
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misinformation over the network. Considering that the
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penalties for copyright infringement can include
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$50,000.00 damages per infringed work, attorneys fees,
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court costs, criminal fines and imprisonment, and
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considering that ignorance is no excuse and innocent
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intent is not even a recognized defense, I cringe to see
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the network used as a soapbox for the ill-informed. For
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that reason, this article will discuss copyright law and
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license law as they pertain to computer software.
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.pg
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My goal is to enable readers to determine when they
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should be concerned about infringing and when they can
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relax about it. I also want to let programmers know how
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to obtain copyright for their work. I'll explain the
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purpose of software licenses, and discuss the effect
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that the license has on copyright. For those of you who
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are programmers, I'll help you decide whether you own
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the programs you write on the job or your boss owns
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them. I will also mention trademark law and patent law
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briefly, in order to clarify some confusion about which
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is which. Incidentally, if you read this entire essay,
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you will be able to determine whether or not the essay
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is copyrighted and whether or not you can make a
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printout of it.
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.pg
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This is a long article, and you may not want to
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read all of it. Here is an outline to help you decide
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what to read and what to ignore:
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.nf
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.si 10
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1. The Meaning of Copyright from the Viewpoint of the Software User
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1.1 A bit of history
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1.2 The meaning of \f2copyright\fP
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1.3 The meaning of \f2public domain\fP
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1.4 A hypothetical software purchase
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1.5 Can you use copyrighted software?
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1.6 Can you make a backup copy?
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1.7 Licenses may change the rules
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1.8 Can you modify the program?
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1.9 Can you break the copy protection scheme?
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1.10 Summary
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.sp
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2. Copyright Sounds Neat -- How Do I Get One? Or, How Do I Know If
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this Program is Copyrighted?
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2.1 How do you get a copyright?
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2.2 How do you lose a copyright?
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2.3 How do you waste a stamp?
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2.4 Do you have to register?
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2.5 How copyright comes into existence
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2.6 The copyright notice
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2.7 Advantages of registration
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2.8 A test to see if you understand this article
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.sp
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3. Who Owns The Program You Wrote?
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3.1 Introduction
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3.2 Programs written as an employee
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3.3 Programs written as a contractor
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.sp
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4. A Brief Word about Licenses
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4.1 Why a license?
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4.2 Is it valid?
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.sp
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.5 I Have a Neat Idea. Can I Trademark it? What about a Patent?
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5.1 Trademark law explained
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5.2 Patent law
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.sp
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6. Conclusion
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.ei
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.fi
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.sp 2
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.hn 1
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The Meaning of Copyright from the Viewpoint of the Software User
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.hn 2
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A bit of history
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.pg
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If you're not interested in history, you can
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skip this paragraph.
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.i Modern
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copyright law first came
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into existence in 1570, by an act of Parliament called
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the Statute of Anne. Like most laws, it hasn't changed
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much since. It was written with books and pictures in
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mind. Parliament, lacking the foresight to predict the
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success of the Intel and IBM corporations, failed to
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consider the issue of copyrighting computer programs.
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.pg
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At first, courts questioned whether programs could be
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copyrighted at all. The problem was that judges
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couldn't read the programs and they figured the
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Copyright Law was only meant to apply to things humans
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(which arguably includes judges) could read without the
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aid of a machine. I saw some mythical discussion about
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that in some of the net.legal drivel. Let's lay that to
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rest: programs are copyrightable as long as there is
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even a minimal amount of creativity. The issue was laid
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to rest with the Software Act of 1980. That Act
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modified the Copyright Act (which is a Federal law by
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the way), in such a way as to make it clear that
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programs are copyrightable. The few exceptions to this
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rule will rarely concern anyone. The next question to
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arise was whether a program was copyrightable if it was
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stored in ROM rather than on paper. The decision in
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the Apple v. Franklin case laid that to rest: it is.
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.hn 2
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The meaning of \f2copyright\fP
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.pg
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Now, what is copyright? As it is commonly
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understood, it is the right to make copies of something
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-- or to put it the other way around, it is the right to
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prohibit other people from making copies. This is known
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as an exclusive right -- the exclusive right to
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.i reproduce ,
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in the biological language of the Copyright
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Act -- and what most people don't know is that copyright
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involves not one, not two, but five exclusive rights.
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These are (1) the exclusive right to make copies, (2)
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the exclusive right to distribute copies to the public,
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(3) the exclusive right to prepare
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.i "derivative works"
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(I'll explain, just keep reading), (4) the exclusive
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right to perform the work in public (this mainly applies
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to plays, dances and the like, but it could apply to
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software), and (5) the exclusive right to display the
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work in public (such as showing a film).
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.hn 2
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The meaning of \f2public domain\fP
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.pg
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Before we go any further, what is public
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domain? I saw some discussion on the net about public
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domain software being copyrighted. Nonsense. The
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phrase
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.i "public domain,"
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when used correctly, means the
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absence of copyright protection. It means you can copy
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public domain software to your heart's content. It
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means that the author has none of the exclusive rights
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listed above. If someone uses the phrase
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.i "public domain"
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to refer to
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.i freeware
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(software which is copyrighted but is distributed without advance payment
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but with a request for a donation), he or she is using
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the term incorrectly. Public domain means no copyright
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-- no exclusive rights.
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.hn 2
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A hypothetical software purchase
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.pg
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Let's look at those exclusive rights from the
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viewpoint of someone who has legitimately purchased a
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single copy of a copyrighted computer program. For the
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moment, we'll have to ignore the fact that the program
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is supposedly licensed, because the license changes
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things. I'll explain that later. For now, assume you
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went to Fred's Diner and Software Mart and bought a
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dozen eggs, cat food and a word processing program. And
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for now, assume the program is copyrighted.
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.hn 2
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Can you use copyrighted software?
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.pg
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What can you do with this copyrighted
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software? Let's start with the obvious: can you use it
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on your powerful Timex PC? Is this a joke? No. Prior
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to 1980, my answer might have been No, you can't use it!
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.pg
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People actually pay me for advice like that! Well
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think: you take the floppy disk out of the zip lock
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baggy, insert it in drive A and load the program into
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RAM. What have you just done? You've made a copy in
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RAM -- in legalese, you've reproduced the work, in
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violation of the copyright owner's exclusive right to
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reproduce. (I better clarify something here: the
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copyright owner is the person or company whose name
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appears in the copyright notice on the box, or the disk
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or the first screen or wherever. It may be the person
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who wrote the program, or it may be his boss, or it may
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be a publishing company that bought the rights to the
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program. But in any case, it's not you. When you buy a
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copy of the program, you do not become the copyright
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owner. You just own one copy.)
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.pg
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Anyway, loading the program into RAM means
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making a copy. The Software Act of 1980 addressed this
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absurdity by allowing you to make a copy if the copy \*(lqis
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created as an essential step in the utilization of the
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computer program in conjunction with a machine and ...
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is used in no other manner ....\*(rq By the way,
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somebody tell me what
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.i "a machine"
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means. If you connect
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5 PC's on a network is that
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.i "a machine"
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or
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.i "several machines" ?
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A related question is whether or not running
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software on a network constitutes a performance. The
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copyright owner has the exclusive right to do that,
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remember?
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.hn 2
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Can you make a backup copy?
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.pg
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OK, so you bought this copyrighted program
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and you loaded it into RAM or onto a hard disk without
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the FBI knocking on your door. Now can you make a
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backup copy?
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.b YES .
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The Software Act also provided that
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you can make a backup copy, provided that it \*(lqis for
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archival purposes only ....\*(rq What you cannot do,
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however, is give the archive copy to your friend so that
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you and your pal both got the program for the price of
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one. That violates the copyright owner's exclusive
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right to distribute copies to the public. Get it? You
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can, on the other hand, give both your original and
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backup to your friend -- or sell it to him, or lend it
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to him, as long as you don't retain a copy of the
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program you are selling. Although the copyright owner
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has the exclusive right to distribute (sell) copies of
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the program, that right only applies to the first sale
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of any particular copy. By analogy, if you buy a
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copyrighted book, you are free to sell your book to a
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friend. The copyright owner does not have the right to
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control resales.
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.hn 2
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Licenses may change the rules
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.pg
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At this point, let me remind you that we have
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assumed that the program you got at the store was sold
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to you, not licensed to you. Licenses may change the
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rules.
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.hn 2
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Can you modify the program?
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.pg
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Now, you're a clever programmer, and you know
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the program could run faster with some modifications.
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You could also add graphics and an interactive mode and
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lots of other stuff. What does copyright law say about
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your plans? Well ... several different things,
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actually. First, recall that the copyright owner has
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the exclusive right to make derivative works. A
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derivative work is a work based on one or more
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preexisting works. It's easy to recognize derivative
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works when you think about music or books. If a book is
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copyrighted, derivative works could include a
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screenplay, an abridged edition, or a translation into
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another language. Derivative works of songs might be
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new arrangements (like the jazz version of Love Potion
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Number 9), a movie soundtrack, or a written
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transcription, or a
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.i "long version" , (such as the fifteen
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minute version of \*(lqWipe Out\*(rq with an extended drum solo
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for dance parties). In my opinion, you are making a
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derivative work when you take the store-bought word
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processor and modify it to perform differently. The
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same would be true if you
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.i translated
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a COBOL program
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into BASIC. Those are copyright infringements -- you've
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horned in on the copyright owner's exclusive right to
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make derivative works. There is, however, some
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breathing room. The Software Act generously allows you
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to
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.i adapt
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the code if the adaptation \*(lqis created as an
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essential step in the utilization of the computer
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program in conjunction with a machine ....\*(rq For
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example, you might have to modify the code to make it
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compatible with your machine.
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.hn 2
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Can you break the copy protection scheme?
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.pg
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Moving right along, let's assume your store
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bought program is copy protected, and you'd really like
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to make a backup copy. You know this nine-year-old whiz
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who can crack any copy-protection scheme faster than you
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can rearrange a Rubix cube. Is there a copyright
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violation if he succeeds? There's room to argue here.
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When you try to figure out if something is an
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infringement, ask yourself, what exclusive right am I
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violating? In this case, not the right to make copies,
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and not the right to distribute copies. Public
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performance and display have no relevance. So the key
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question is whether you are making a
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.i "derivative work" .
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My answer to that question is, \*(lqI doubt it.\*(rq On the
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other hand, I also doubt that breaking the protection
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scheme was \*(lqan essential step\*(rq in using the program in
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conjunction with a machine. It might be a \*(lqfair use,\*(rq
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but that will have to wait for another article. Anyone
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interested in stretching the limits of the \*(lqfair use\*(rq
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defense should read the Sony
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.i Betamax
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case.
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.hn 2
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Summary
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.pg
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Let me summarize. Copyright means the
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copyright owner has the exclusive right to do certain
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things. Copyright infringement means you did one of
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those exclusive things (unless you did it within the
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limits of the Software Act, i.e., as an essential step ....).
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.hn 1
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Copyright Sounds Neat -- How Do I Get One? Or, How Do I Know if this Program is Copyrighted?
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.hn 2
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How do you get a copyright?
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.pg
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If you've written an original program, what do you have to do to get a
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copyright? Nothing. You already have one.
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.hn 2
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How do you lose a copyright?
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.pg
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If you've written an original
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program, what do you have to do to lose your copyright
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protection? Give copies away without the copyright
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notice.
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.hn 2
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How do you waste a stamp?
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.pg
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If you mail the program to yourself
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in a sealed envelope, what have you accomplished?
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You've wasted a stamp and an envelope and burdened the
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postal system unnecessarily.
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.hn 2
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Do you have to register?
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.pg
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Do you have to register your program
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with the U.S. Copyright Office? No, but it's a damn
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good idea.
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.hn 2
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How copyright comes into existence
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.pg
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Copyright protection (meaning the five
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exclusive rights) comes into existence the moment you
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.i fix
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your program in a
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.i "tangible medium" .
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That means
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write it down, or store it on a floppy disk, or do
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something similar. Registration is optional. The one
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thing you must do, however, is protect your copyright by
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including a copyright notice on every copy of every
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program you sell, give away, lend out, etc. If you
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don't, someone who happens across your program with no
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notice on it can safely assume that it is in the public
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domain (unless he actually knows that it is not).
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.hn 2
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The copyright notice
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.pg
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The copyright notice has three parts. The
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first can be either a c with a circle around it (\(co), or the
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word
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.b Copyright
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or the abbreviation
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.b Copr.
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The c
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with a circle around it is preferable, because it is
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recognized around the world; the others are not. That's
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incredibly important. Countries around the world have
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agreed to recognize and uphold each others' copyrights,
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but this world-wide protection requires the use of the c
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in a circle. On disk labels and program packaging, use
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the encircled c. Unfortunately, computers don't draw
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small circles well, so programmers have resorted to a c
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in parentheses: (c). Too bad. That has no legal
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meaning. When you put your notice in the code and on
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the screen, use
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.b Copyright
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or
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.b Copr.
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if you can't make a circle.
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.pg
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The second part of the notice is the \*(lqyear
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of first publication of the work.\*(rq
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.i Publication
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doesn't mean distribution by Osborne Publishing Co. It
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means distribution of copies of the program to the
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public \*(lqby sale or other transfer of ownership, or by
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rental, lease, or lending.\*(rq So when you start handing
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out or selling copies of your precious code, you are
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publishing. Publication also takes place when you
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merely OFFER to distribute copies to a group for further
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distribution. Your notice must include the year that
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you first did so.
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.pg
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The third part of the notice is the name of
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the owner of the copyright. Hopefully, that's you, in
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which case your last name will do. If your company owns
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the program -- a legal issue which I will address later
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in this article -- the company name is appropriate.
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.pg
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Where do you put the notice? The general
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idea is to put it where people are likely to see it.
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Specifically, if you're distributing a human-readable
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code listing, put it on the first page in the first few
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lines of code, and hard code it so that it appears on
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the title screen, or at sign-off, or continuously. If
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you're distributing machine-readable versions only, hard
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code it. As an extra precaution, you should also place
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the notice on the gummed disk label or in some other
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fashion permanently attached to the storage medium.
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.hn 2
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Advantages of registration
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.pg
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Now, why register the program? If no one
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ever rips off your program, you won't care much about
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registration. If someone does rip it off, you'll kick
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yourself for not having registered it. The reason is
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that if the program is registered before the
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infringement takes place, you can recover some big bucks
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from the infringer, called statutory damages, and the
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court can order the infringer to pay your attorneys
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fees. Registration only costs $10.00, and it's easy to
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do yourself. The only potential disadvantage is the
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requirement that you deposit the first and last 25 pages
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of your source code, which can be inspected (but not
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copied) by members of the public.
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.hn 2
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A test to see if you understand this article
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.pg
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Now, someone tell me this: is this article copyrighted? Can you print it?
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.hn 1
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Who Owns The Program You Wrote?
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.hn 2
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Introduction
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.pg
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The starting point of this analysis is that if you wrote
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the program, you are the author, and copyright belongs
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to the author. HOWEVER, that can change instantly.
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There are two common ways for your ownership to shift to
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someone else: first, your program might be a \*(lqwork for
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hire.\*(rq Second, you might sell or assign your
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.i rights
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in the program, which for our purposes means the
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copyright.
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.hn 2
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Programs written as an employee
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.pg
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Most of the programs which you write at
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work, if not all of them, belong to your employer.
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That's because a program prepared by an employee within
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the scope of his or her employment is a \*(lqwork for hire,\*(rq
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and the employer is considered the
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.i author .
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This is more or less automatic if you are an employee -- no
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written agreement is necessary to make your employer the
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copyright owner. By contrast, if you can convince your
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employer to let you be the copyright owner, you must
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have that agreement in writing.
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.pg
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By the way, before you give up hope of
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owning the copyright to the program you wrote at work,
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figure out if you are really an employee. That is
|
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actually a complex legal question, but I can tell you
|
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now that just because your boss says you are an employee
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doesn't mean that it's so. And remember that if you
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created the program outside the
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.i scope
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of your job, the
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program is not a \*(lqwork for hire.\*(rq Finally, in
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California and probably elsewhere, the state labor law
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provides that employees own products they create on
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their own time, using their own tools and materials.
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Employment contracts which attempt to make the employer
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the owner of those off-the-job
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|
.i inventions
|
|
are void, at least in sunny California.
|
|
.hn 2
|
|
Programs written as a contractor
|
|
.pg
|
|
Wait a minute: I'm an independent
|
|
contractor to Company X, not an employee. I come and go
|
|
as I please, get paid by the hour with no tax withheld,
|
|
and was retained to complete a specific project. I
|
|
frequently work at home with my own equipment. Is the
|
|
program I'm writing a \*(lqwork for hire,\*(rq owned by the
|
|
Company? Maybe, maybe not. In California, this area is
|
|
full of landmines for employers, and gold for
|
|
contractors.
|
|
.pg
|
|
A contractor's program is not a \*(lqwork for
|
|
hire,\*(rq and is not owned by the company, unless (1) there
|
|
is a written agreement between the company and the
|
|
contractor which says that it is, and (2) the work is a
|
|
.i" commissioned work" .
|
|
A
|
|
.i "commissioned work"
|
|
is one of
|
|
the following: (a) a contribution to a
|
|
.i "collective work" ,
|
|
(b) an audiovisual work (like a movie, and maybe like a video game),
|
|
(c) a translation, (d) a compilation, (e) an instructional text,
|
|
(f) a test or answer to a test, or (g) an atlas. I know you must be
|
|
tired of definitions, but this is what the real legal
|
|
world is made of. An example of a collective work is a
|
|
book of poetry, with poems contributed by various
|
|
authors. A piece of code which is incorporated into a
|
|
large program isn't a contribution to a collective work,
|
|
but a stand-alone program which is packaged and sold
|
|
with other stand-alone programs could be.
|
|
.pg
|
|
So where are we? If you are a contract
|
|
programmer, not an employee, and your program is a
|
|
.i "commissioned work" ,
|
|
and you have a written agreement
|
|
that says that the program is a \*(lqwork for hire\*(rq owned by
|
|
the greedy company, who owns the program? That's right,
|
|
the company. But guess what? In California and
|
|
elsewhere the company just became your employer! This
|
|
means that the company must now provide worker's
|
|
compensation benefits for you
|
|
.b "AND UNEMPLOYMENT INSURANCE" .
|
|
.hn 1
|
|
A Brief Word About Licenses.
|
|
.hn 2
|
|
Why a license?
|
|
.pg
|
|
When you get software at the local five and dime, the
|
|
manufacturer claims that you have a license to use that
|
|
copy of the program. The reason for this is that the
|
|
manufacturer wants to place more restrictions on your
|
|
use of the program than copyright law places. For
|
|
example, licenses typically say you can only use the
|
|
program on a single designated CPU. Nothing in the
|
|
copyright law says that. Some licenses say you cannot
|
|
make an archive copy. The copyright law says you can,
|
|
remember? But if the license is a valid license, now
|
|
you can't. You can sell or give away your copy of a
|
|
program if you purchased it, right? That's permitted by
|
|
copyright law, but the license may prohibit it. The
|
|
more restrictive terms of the license will apply instead
|
|
of the more liberal copyright rules.
|
|
.hn 2
|
|
Is it valid?
|
|
.pg
|
|
Is the license valid? This is hotly debated
|
|
among lawyers. (What isn't? We'll argue about the time
|
|
of day.) A few states have passed or will soon pass
|
|
laws declaring that they are valid. A few will go the
|
|
other way. Federal legislation is unlikely. My
|
|
argument is that at the consumer level, the license is
|
|
not binding because there is no true negotiation (unless
|
|
a state law says it is binding), but hey that's just an
|
|
argument and I'm not saying that that's the law. In any
|
|
case, I think businesses which buy software will be
|
|
treated differently in court than consumers. Businesses
|
|
should read those licenses and negotiate with the
|
|
manufacturer if the terms are unacceptable.
|
|
.hn 1
|
|
I Have A Neat Idea. Can I Trademark It? What About patent?
|
|
.hn 2
|
|
Trademark law explained
|
|
.pg
|
|
Sorry, no luck. Trademark law protects names: names of
|
|
products and names of services. (Note that I did not
|
|
say names of companies. Company names are not
|
|
trademarkable.) If you buy a program that has a
|
|
trademarked name, all that means is that you can't sell
|
|
your own similar program under the same name. It has
|
|
nothing to do with copying the program.
|
|
.hn 2
|
|
Patent Law
|
|
.pg
|
|
Patent law can apply to computer programs,
|
|
but it seldom does. The main reasons it seldom applies
|
|
are practical: the patent process is too slow and too
|
|
expensive to do much good in the software world. There
|
|
are also considerable legal hurdles to overcome in order
|
|
to obtain a patent. If, by chance, a program is
|
|
patented, the patent owner has the exclusive right to
|
|
make, use or sell it for 17 years.
|
|
.hn 1
|
|
CONCLUSION
|
|
.pg
|
|
I know this is a long article,
|
|
but believe it or not I just scratched the surface.
|
|
Hopefully, you'll find this information useful, and
|
|
you'll stop passing along myths about copyright law. If
|
|
anyone needs more information, I can be reached at the
|
|
address on the first page.
|
|
Sorry, but I do not usually have
|
|
access to the network, so you can't reach me there.
|
|
.sp
|
|
Thank you. JORDAN J. BRESLOW
|