Copyright Your Software!

Written by Steve Holder
August 4, 2008


Some computer programmers would be flattered to discover people were copying and using software they’d written. But for programmers who depend on the revenue from selling their computer applications, illegal copying takes money right out of their pockets.

If you’re among the latter group, the good news for you is that copyright protection extends to computer software, and it’s now automatic. As soon as you finish writing it, it’s copyrighted. And it’s illegal for anyone to reproduce, distribute, perform or adapt a copyrighted work without the author’s permission. You don’t have to register the copyright with the government to get this protection, and you don’t even have to use the © symbol anymore. 

The bad news is that if you need to sue somebody for illegally copying or distributing your software, you can’t if you haven’t registered your copyright with the U.S. Copyright Office. 

Technically, if you discover someone infringing on your copyright, you can register your software and then sue. But in that case the law allows you to collect only your actual damages, and you can’t recover your attorney fees. These financial limitations could make it impossible to take the pirate to court.

If, however, you register your software copyright within three months after first putting your software up for sale or before an act of infringement occurs, the law gives you more ammunition for going after pirates. Now, you can recover attorney fees and you’re entitled to statutory damages instead of actual damages. Statutory damages are often many times higher than actual damages, and no proof of damages is required – only proof of infringement.

From this, it should be clear that if you plan to sell your software, you ought to register your copyright. Think of it as a $35 insurance policy. Well worth the money.

What You Can Register

Source Code

Fundamentally, your copyright covers what you have written, just like a book copyright. It does not cover ideas, methods, processes, structure, logic, features, functions or algorithms. If someone wants to write their own program to duplicate everything your application does, copyright does not prohibit them from doing so, as long as none of your code is cut and pasted in the process. At the end of the day, what your copyright principally prohibits is someone making a copy of your program (or parts of it) without your permission.

Computer Screens

A potentially thorny issue to be aware of is whether the computer screen displays generated by the program are covered by the software copyright. It’s the U.S. Copyright Office’s position that because the screen displays are created by the copyrighted code, the screens are also copyrighted to the extent permissible. (Simple menus and blank forms are not copyrightable.) The courts, however, have not been consistent in this interpretation.

Recognizing this, the Copyright Office provides another option to authors who believe much of the value in their program is the creative content and expression displayed on the computer screen. Offering copyright registration specifically for the screens provides comforting protection for programmers concerned that someone else can generate nearly identical visuals with completely different code. Just as an artist’s copyright prevents someone else from creating a new painting that is essentially a duplicate of the first artist’s work, the programmer’s screen display copyright offers similar protection.

Object Code

The Copyright Office is not interested in object code. Their contention is that the author did not write the object code; a compiler wrote it. If for some reason you can’t or won’t register your source code, they will grudgingly accept the object code under the “rule of doubt.” This rule essentially means they’re going to register your copyright claim even though they can’t judge whether you have anything copyrightable to register, and in a court fight, your copyright’s validity might not hold up.

Manuals and Documentation

When your software includes printed manuals or documentation, you can include those materials in your software copyright registration.

Packaging

If your application is packaged for physical distribution, you can copyright the art and text of your packaging, but that requires a separate registration and another $35 registration fee. 

What You Can’t Register

You can’t claim copyright in anything that is not your original creation. This includes:

If your software includes any of the elements above, you have to point them out and excerpt from your copyright claim.

The following are excluded from being copyrighted under any circumstances:

How to Register

To register your copyright, complete the electronic registration Form eCO at the U.S. Copyright Office website, and pay your registration fee on-line. Then upload a file of your source code (or a portion of the code if it’s more than 50 pages), and include screen images and documentation if you’re registering those materials as well. The files you upload should be in one of the acceptable electronic file formats.

Because materials registered with the copyright office are publicly accessible, you should determine if your source code includes any trade secrets you don’t want revealed to the public. The Copyright Office provides specific procedures for registering your source code without disclosing trade secrets.

For complete details on registering software copyrights, see Circular 61.

Related Articles

Did you enjoy this article? Why not leave a comment below and continue the conversation, or subscribe to my feed and get articles like this delivered automatically to your feed reader.

Comments

No comments yet.

Leave a comment

(required)

(required)