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  • Copyright law overview for those interested

    Hello,

    This doesn’t really fit any of the forum topics. So I’ll post it here as this is the most active forum. Feel free to move it if need be. (How about a general discussion forum?)

    I have recently had a couple of people ask me about copyright laws, and many people seem to be out of date on this. I realize that most people on this forum probably already know this, or might be able to correct some of this for their own area, but it should serve as a good introduction to the subject for those new to the software world.

    ======================
    The run down of modern copy-write law as I understand it after much discussion with several very experienced (and trustworthy, haha!) lawyers:

    First of all, my own personal legal stuff: THIS IS JUST MY UNDERSTANDING AND MAY NOT BE CORRECT IN YOUR COUNTRY AND/OR STATE/PROVINCE. THIS IS JUST TO GIVE THOSE WHO DON’T KNOW, A QUICK RUN DOWN OF WHERE THINGS ARE AT. I ENCOURAGE YOU TO CONSULT WITH YOUR OWN LAWYER REGARDING THESE POWERFUL LAWS.

    The creator is the owner of the created, unless a signed document is used to transfer the ownership over. This is only provided that you enforce your copyright from day one and without exception. (I’ll talk about this a bit later.)

    The law (in Canada and in the States) says that once a creation has been committed to media, it is copyrighted. Thus since in the software industry we are working with the creation on media from the get-go, it is copyright protected immediately.

    The only acceptation would be if you had only talked about the ideas and concepts, but had never put any thing on paper or otherwise. If this was the case, and someone beat you to committing if to media, then they would own the copyright.

    In order to prove that you hold the copyright, what you must be able to do is prove that you did create it as well as when you created it. Thus permanent incremental backups such as single write CDs are the best proof of development.

    Although the government department of copyright might still accept material to be submitted for copy protection, what they are really doing at this point is just providing a safe and accurate place to store a copy of your creation that may be recalled in a dispute. Thus it is not necessary to submit your creation to this department. BUT, like I said, it is a good place to keep a copy. What I suggest is to submit any “bread and butter” to the government, but don’t worry about the small stuff. If you do have a problem with the small stuff all you have to do is prove that you created it.

    Now for the “what ifs”:

    If you work for, or are contracted by an organization or company: If you developed something, even if you where paid to do so, then you are still the creator, thus still the owner. This of course can wreck havoc on unsuspecting companies. If you are a company that develops or creates anything, you actually need to have your employees sign an agreement that will relinquish there ownership and give the ownership of the creation to the company. On the other hand, if you are a contractor, and you are developing a system for a company and you wish to be able to re-sell the creation you developed during the contract, make sure the company understands that you legally own the creation. If they have a problem with this, and want to own the creation themselves, then you must negotiate (before hand) a contract that will take this into account.

    Now when the above can all fall apart is when you don’t enforce your copyright. If you do not enforce your copyright to the *best of your ability* then you will have to fight the following statement in court (and loose): “The creator did not object to person(s) X using the creation, thus we assumed that we would be allowed to use it as well.” Basically what happens in this case is that you submit your creation to the public domain whether intended or not.

    Thus for every person(s) that use your creation, they must have a license agreement with you. The license agreement does not give the user any ownership of the creation, it simply allows them to use it with in the guidelines set by you, and nothing more.

    If you ever give someone ownership of your creation, then they may do with it whatever they like and you may not control their use of the creation.

    =================
    And that would be what I know of the subject,
    Colin Schmidt,
    [email protected]

    -------------
    Colin Schmidt & James Duffy, Praxis Enterprises, Canada

  • #2
    Interestingly, there is (or was?) a test-case on the subject of creation-ownership right here in New Zealand last year. A local (NZ) software company created a product called Ghost and subsequently sold it for about US$28,000,000 to Symantec. Within days of the announcement, a programmer that had recently left the employment of the company announced a legal battle to seek his share of the monies on the grounds that he was the primary creator - and the amount he wanted? Yes - you guess it - US$28,000,000.

    Since this series of announcements, I've not heard anything more about it... Has anyone else here?

    What all this does say is that you have to have these type of things in writing or accept the consequences. Always consult YOUR lawyer - the initial cost may be easily outweighed but the cost of legal disputes. The onus is on everybody. International borders make subject this even more complex and unwieldy.

    BTW, this *is* an off-topic discussion for this forum - however, as it loosely relates to "programming", I'll allow it to continue but it I will probably move it to the "programming" forum soon.


    ------------------
    Lance
    PowerBASIC Support
    mailto:[email protected][email protected]</A>
    Lance
    mailto:[email protected]

    Comment


    • #3
      Colin;

      There are exceptions to the "Creator" rule you mentioned:

      (1) If you are employed by a company, then the "Company" owns the software and is its creator, not the employee. In the USA, the only way you can be employed by a company and be considered the creator (owner of copyright), is if you had a "contract" that says so (which most don't have).

      (2) In the USA if you are a "contractor" (freelancer, consultant) who is hired to write the software by "another" company (of which you are not an employee), then "you are" the creator of the Software and its copyright owner. The only way a company can hire a freelancer and own the copyright to what is created, is if the freelancer signed a "work for hire" agreement (which states that software is a work for hire and the freelancer gives the copyright to the one who authorized its creation). So don't sign a work for hire agreement if you want to keep the copyright !

      If you would like more info on the subjects of Copyright, Trademarks, Work for hire contracts, Software licensing, etc, then please read the following books (written by those who know the law):

      "Legal Care for your Software"
      by Daniel Remer and Stephen Elias
      Published by NOLO Press

      For those who deal with Multimedia applications which contain Images, Video, etc.:

      "Multimedia Law and Business Handbook"
      by J. Dianne Brinson and Mark Radcliffe
      Published by Interactive Multimedia Association

      "The Software Publishers Association Legal Guide to Multimedia"
      by Thomas J. Smedinghoff
      Published by Addison Wesley

      It is important to know that there are rules about "International" copyright that all shoud learn. A simple thing like forgetting to use the words "All Rights Reserved" can force you to lose some rights in some countries. Not all countries accept the US Copyright and there are a couple different international treaties on copyright, but not all countries have signed all the agreements (including the US).

      It is strongly suggested that all software developers read up on the subject and make sure you have accurate information. Also software law changes from year to year in some countries and we should be aware of the latest law.


      ------------------
      Chris Boss
      Computer Workshop
      Developer of "EZGUI"
      http://cwsof.com
      http://twitter.com/EZGUIProGuy

      Comment


      • #4
        Gentlemen:

        I've have been here.

        In 1986, I had 42 collection agencies in the southeast running
        my software package. They were using the software under a
        license on one machine only (A Server and upto 40
        workstations.) They paid additional fees based on number of
        workstations,5,10,15,20,25, etc..

        In the fact that I had license agreements, and displayed
        copyright information to the master menu screens for the
        software didn't stop one of my clients (wanting to avoid paying
        additional license fees for other locations) had a former
        employee of mine, purchase equipment from my hardware source
        and copy my software to 5 new locations (5 new collections
        agencies)

        It was not until almost one year later, in a marketing campaign
        that we called one of these new agencys and the manager said
        they already had a computer system and stated the name of the
        package, It was my software package to my surprise.

        So, I hired attorney's (expensive ones).
        We thought at first, that we could sue the client for $50,000
        plus attorney fees for each unauthorized use of the package.
        The $50,000 being what the Copyright Laws in 1988 said could
        be the penalty for copyright violations. Not So, The
        $50,000 only applied to Registered Copyrights and with
        documentation archived in the Library of Congress.

        We spend over $10,000 preparing all the documentation to
        get the package copyrighted within the next two months.
        Even doing this would not help with the violations that
        had occurred prior to the registering. We were going to
        have to prove actual damages which is somewhat hard to do.
        The only way was to seek the current going price of the
        software package, which averaged about $10,000 each.
        So 5 violations were worth only $50,000 total. The
        copyright law at that time was not real specific about
        any attorney fees being awarded on un-registered software.

        Well, we got lucky, after depositions were taken from the
        client and the former employee, we found that the former
        employee had also installed 2 additional packages for
        another client, they took place after the registering the
        software.

        Four years later and after $100,000 in attorney fees we
        settled with the first client out of court, and won in
        Federal Court our case agains't the second client. Then
        we had to collect.

        Let it be known, the attorneys got most of the money, and
        I had spent 5 years of my life basically for nothing.

        So be aware, if you are marketing copyrighted software,
        get it registered. It can be done for around 500-1000
        dollars before you get in trouble. And you can win in
        Federal Court without giving all the money to attorneys.

        Phil


        ------------------
        E-Mail:
        pt AT pursuersoft DOT com

        Comment


        • #5
          Phil is correct !

          You must register your softwares Copyright before you can sue anyone and get compensation.

          As far as the cost to Copyright your software, you don't need a lawyer to do it and it only costs about $20 US to copyright it (in the US). You simply fill out the US Copyright Form and supply the program in electronic format as well as in printed form.

          You can protect some proprietray code by leaving it out of the printout if you wish, but the more you leave out the less it may be protected.

          The first book I mentioned above details all of this very well and is worth the small price you pay for it.




          ------------------
          Chris Boss
          Computer Workshop
          Developer of "EZGUI"
          http://cwsof.com
          http://twitter.com/EZGUIProGuy

          Comment


          • #6
            Hello,

            From what I have understood, and wrote above, what Phil experienced in 1988 is no longer the case. This apparently is quite recent and from with in the last one or two years.

            Chris, how new are to books that you recommended?

            Lance’s example about the Ghost software is a prime example of an employee owning the software they themselves primarily developed within a company with out an agreement specifying the ownership. I expect we will see much more of this before people realize that this can happen.

            And once again, I could be completely wrong, as I’m not a lawyer. But this is the layman’s terms for what I was told.

            Either way though, always submit your “bread and butter” creations to the government for the best protection. From the sounds what Chris said, it is very easy to do in the US at least (and I hope in Canada as well.)

            Colin Schmidt

            ------------------
            Colin Schmidt & James Duffy, Praxis Enterprises, Canada

            Comment


            • #7
              Guys --
              What exactly protects your (C) ?
              a) Ready product (Exe)
              b) Source code
              c) Ideas of interface

              For example, I know some file managers. Authors didn't use source code of Norton Commander, but it's obvious that ideas belongs to NC.

              Another case. When you sign a contract, as rule, company wants -
              1) exclusive right for software, which you created during contract
              2) to have source code and detail description.

              When contract is finished, it's clear that company has right to use (sale) releases, created during contract.
              But like alone author you are able to change some statements in your program.
              In this case to whom belongs (C) for new releases?

              ------------------

              Comment


              • #8
                Semen,

                My understanding:

                Your product is copyrighted (in the US and Canada) the moment it is committed to media. Thus the final product on your hard drive, the source code on your hard drive (even in progress) are both copyrighted as long as they specify within themselves that they are copyrighted. So within your own working source code on your own hard drive, you must specify that yourself or the legal owner has the copyright for it. And of course you need to have the copyright notice on the creation it’s self as well.

                The ideas for the interface though are very difficult to copyright and many people have lost in court trying to defend a copyright on an interface. A good example of this would be the GUI ideas created by Xerox and further developed by Macintosh. Microsoft was able to copy the interface ideas as long as they were not identical and had a few of there own additions.

                In the case of the contractor, it is dependent on what the contract says. If the contract specifies who will be the owner of the creation, then the contract stands. If the contract does not specify who the owner is, then the actual creator is the owner.

                Colin Schmidt

                ------------------
                Colin Schmidt & James Duffy, Praxis Enterprises, Canada




                [This message has been edited by Colin Schmidt (edited March 28, 2000).]

                Comment


                • #9
                  Chris, Colin, and Semen,

                  Chris is probably correct on the amount of cost to file
                  your copyright, but to effectively quarantee that you
                  have enough facts for suing, you should provide hardcopy
                  source code, electronic source code and full documentation
                  on the full package. That will cost you a little bit of
                  money, if you haven't already got the materials.

                  Second, even with a registered copyright, whether US/Canada
                  or International it won't stop people from copying your
                  software and using it.

                  The biggest problem (even Microsoft's) is that you must
                  catch them doing it. I was just lucky when I made that
                  phone call one day and found out that my client had copied
                  by software. Since my client base was in the southeast, and
                  I knew most of the collection agencies operators, I was lucky.

                  I also received rumors from the American Collectors Association
                  that some firms in Oregon and California were also using my
                  software, but I was not able to confirm that.

                  So, hope that you can sell enough to recover your development
                  cost and make a profit, that's really all you can do.

                  Plus, even if you catch someone, the expenses of suing and
                  recovering anything will likely be more than it's worth.

                  Registered Copyrights will not make all people honest, just a
                  few of them.


                  Phil

                  ------------------
                  E-Mail:
                  pt AT pursuersoft DOT com

                  Comment


                  • #10
                    Want a poor mans' copyright?

                    Email a CD/Diskette to yourself, registered, certified, signature required....

                    Now you have a US Government signature and date stamp on it and it is sealed, put it in a safe...

                    Should you catch someone trying to DUPLICATE your software etc, you now can show and open in court a sealed envelope withthe source code..

                    Pretty hard to displute that..


                    Scott




                    ------------------
                    Scott
                    mailto:[email protected][email protected]</A>
                    Scott Turchin
                    MCSE, MCP+I
                    http://www.tngbbs.com
                    ----------------------
                    True Karate-do is this: that in daily life, one's mind and body be trained and developed in a spirit of humility; and that in critical times, one be devoted utterly to the cause of justice. -Gichin Funakoshi

                    Comment


                    • #11
                      Colin;

                      The books I have do have a few years on them, so it is possible some things can change.

                      The employee status criteria determining Copyright is important, since companies always want the copyright to anything their employees develop.

                      As long as you are an independent contractor, you always own the copyright, inless your client has you sign a Work for Hire contract.

                      If you are the employer, likely it is best to not just assume you have the rights to software written by your employees. It is suggested to have a work for hire contract for employees as well, just to protect yourself.

                      Copyrights "must" be registered before you can sue for damages and nothing beats the registered copyright as a protection. Simply dating the software by any means will not carry the same weight as a registered copyright. If you have a registered copyright then people are more likely not going to want to fight you in court, since they know they are likely to lose. If you do not have a registered copyright, then be prepared to spend some money defending your copyright.

                      Also, Copyrights are not just limited to the source code. Any Images or videos used also carry a copyright. It is possible to own the copyright to the software, but then be in violation of someones elses copyright because you used an Image that belongs to them.

                      Another area of concern is trademarks. Be careful of the name you choose for your software and put a T (Trademark) character next to any trademarks. If you have the money, register your trademark (R character used).

                      Next be careful of using so called freeware source code in your apps, since you might be treading on someones Patent (another ball of wax). A good example is the GIF Image code which uses the LZW algorythm. The patent belongs to Unisys and they are getting downright mean about protecting that Patent. You must pay a royalty to Unisys for any GIF image code you use that uses LZW.

                      A perfect example of the danger of Patents is the VB 5/6 runtimes. They include GIF code in them and while Unisys is tolerating this (Microsoft knows it) for now, they could someday force the issue and require everyone who uses the VB runtime (end users, since MS ownly paid for the right to use it in the development software, not end users) to pay royalties.

                      Microsoft knowly uses the GIF code in the VB runtime, but downplays the need for a Unisys License . They very smeekily put up a web page telling VB developers that they could be in violation of the patent if they simply use the Picture and Image controls in a VB app (which is hard to avoid). The lawyer from Unisys went so far as to "scare" me into thinking it is just best for me to pay royalties for any VB app, rather than take a chance. While I doubt Unisys will take on the entire world of VB developers (that would be a mess), it is scary to think they could if they wanted to.

                      This is one reason why I have "stopped using VB" and now use PB exclusively. At least with PB there are no sneeky tricks.

                      Patents can be a real pain to deal with.


                      ------------------
                      Chris Boss
                      Computer Workshop
                      Developer of "EZGUI"
                      http://cwsof.com
                      http://twitter.com/EZGUIProGuy

                      Comment


                      • #12
                        Scott,
                        -----------------------------------------------------
                        Want a poor mans' copyright?

                        Email a CD/Diskette to yourself, registered, certified, signature required....

                        Now you have a US Government signature and date stamp on it and it is sealed, put it in a safe...

                        Should you catch someone trying to DUPLICATE your software etc, you now can show and open in court a sealed envelope withthe source code..

                        Pretty hard to displute that..
                        ------------------------------------------------------------

                        Great idea, but it won't work.

                        The only courts that you can sue for copyright infringement
                        in the United States is in Federal Court. Your first complaint
                        must show that the software is registered with the Copyright
                        and Patents/Trademark Division. You will also need to show
                        proof with a certified copy of your application stamped
                        and approved. If it is not, your case can be dismissed
                        immediately just by the court; without any motions from the
                        defense attorneys.

                        What you have done with your poor man's copyright is make
                        yourself poorer by spending the money for the certified letter.

                        As Chris mentioned, If you are using any other software written
                        by some other party that is copyrighted or Not, you have another
                        problem, unless you declare it in the application and the
                        documentation you submit for your copyright. If not, your
                        copyright may be proven void in court.

                        I might be a little behind the times, but after dealing with
                        this problem for 5 years, I knew the U.S. Copyright Code
                        Section by heart thru 1992. At that time there were just a
                        few attorneys that had any knowledge of copyright laws.
                        If I hadn't studied the code and educated my attorneys, I
                        would have been up the creek without a paddle. And on top of
                        that, I had to pay them to go to school.

                        Your Choice and My .02 worth.

                        Phil




                        ------------------
                        E-Mail:
                        pt AT pursuersoft DOT com

                        Comment


                        • #13
                          Phil, Chris, and Lance: thanks for your feedback.

                          Colin Schmidt

                          ------------------
                          Colin Schmidt & James Duffy, Praxis Enterprises, Canada

                          Comment


                          • #14
                            What about submitting your source to the copywrite office in encrypted format?

                            Then if it is disputed you could unencrypt and prove copywrite.



                            ------------------

                            Comment


                            • #15
                              I can do a surprising copyright over-view:

                              First of all a software program is a process and therefor could be patented. The software industry does not go for patents because they disclaim guarantee of the process in the first place. Next, your EXE souce code is not in copy form and therefor that is not what you are copyrighting. You can put a copyright notice or a claim of ownership in the source code and then if anyone did decompile your program or crash your safe then it would have notice. If you want to formally copyright your source code just send in the first 25 pages with the form and the fee. At that point anyone researching copyrights can look at the code.

                              So a copyright of software is probably copyright of the visual aspect of the program. Well, visual aspect of the program also proves that there is a "copy" of the software on the disk. It may be funky but obviously it is a system that does work.

                              I would claim copyright of the source code without formal registration. I would formally copyright the visual aspect of the program. And, I would claim ownership of the program and of the source code.

                              Finally, there is no key mistake that you make that takes your property or you copyright away from you. You just need proof that it is yours. You can realize slightly reduced damages even without formal copyright registration. A claim of copyright is: Name, Date, and copyright word or icon.

                              ------------------

                              Comment


                              • #16
                                Next be careful of using so called freeware source code in your apps, since you might be treading on someones Patent (another ball of wax). A good example is the GIF Image code which uses the LZW algorythm. The patent belongs to Unisys and they are getting downright mean about protecting that Patent. You must pay a royalty to Unisys for any GIF image code you use that uses LZW.
                                Ya know, we had this conversation in the past, and since that time our new building went up, my window seat in the new building has a great view!! ----> Of the Unisys building...

                                I keep forgetting to go over there and find out about this .GIF thing, but I do have a friend over there perhaps I can dig up some freebies or something? I don't know seriously but I'd like to speak to someone up there one of these days (IT's 100feet from me)....


                                As for the postal "Poor man" copyrite. If I were in court and it was a matter of two men's word that a software app belonged to one or the other, and I have registered mail that has never been opened and has decrytped source in there....wouldn't the fact that the envelope was addressed TO and FROM me matter? They check ID when you pick these things up ya know...

                                I don't know, but I do know if a person CAN afford it, best to register with the feds...


                                ------------------
                                Scott
                                mailto:[email protected][email protected]</A>
                                Scott Turchin
                                MCSE, MCP+I
                                http://www.tngbbs.com
                                ----------------------
                                True Karate-do is this: that in daily life, one's mind and body be trained and developed in a spirit of humility; and that in critical times, one be devoted utterly to the cause of justice. -Gichin Funakoshi

                                Comment


                                • #17
                                  >>
                                  As for the postal "Poor man" copyrite. If I were in court and it was a matter of two men's word that a software app belonged to one or the other, and I have registered mail that has never been opened and has decrytped source in there....wouldn't the fact that the envelope was addressed TO and FROM me matter? They check ID when you pick these things up ya know...
                                  >>

                                  It would be very easy for someone to send themselves a registered mail letter like that and save it. At a later time they could simply steam open the letter and replace the contents with new material that they wish to claim a copyright on.

                                  When you get a $20 copyright from the copyright office there is a 100% solid recorded record of your work that can not be tampered with and will hold up in a court of law.

                                  Tim

                                  ------------------

                                  Comment


                                  • #18
                                    Originally posted by Tim Wisseman:

                                    When you get a $20 copyright from the copyright office there is a 100% solid recorded record of your work that can not be tampered with and will hold up in a court of law.

                                    Tim


                                    Would you happen to have the information for obtaining that $20 copyright?? I'd be happy to check it out!
                                    you can email me at mailto:[email protected][email protected]</A> or just reply


                                    Thanks!

                                    PS, Registered/Certified/Signature req'd can't be steamed open from any post office I've been to, they seal them, but I understand your point It is possible to fraud it somehow some way, always someone out there making a buck...


                                    Scott


                                    ------------------
                                    Scott
                                    mailto:[email protected][email protected]</A>
                                    Scott Turchin
                                    MCSE, MCP+I
                                    http://www.tngbbs.com
                                    ----------------------
                                    True Karate-do is this: that in daily life, one's mind and body be trained and developed in a spirit of humility; and that in critical times, one be devoted utterly to the cause of justice. -Gichin Funakoshi

                                    Comment


                                    • #19
                                      (Posted on behalf of Fred Smith):

                                      Copyright law & process is at the Library of Congress:
                                      http://www.loc.gov/copyright

                                      Best Regards,
                                      Fred Smith
                                      IMService
                                      Lance
                                      mailto:[email protected]

                                      Comment


                                      • #20
                                        >>
                                        PS, Registered/Certified/Signature req'd can't be steamed open from any post office I've been to, they seal them, but I understand your point It is possible to fraud it somehow some way, always someone out there making a buck...
                                        >>

                                        Lets say Mr X mailed himself a registered certified letter back in 1997 with a single blank floppy disk in it. He picked it up in 1997 and it has been sitting on his shelf the last 3 years.

                                        You just released a wonderful program, that will make you millions of dollars.

                                        Mr X hacks into your computer and steals your source code or Mr X breaks into your business and steals your source code.

                                        Mr X edits your source code a little so that it looks like he wrote it.

                                        Mr X sets the date of his computer back to 1997 and saves the source onto a floppy.

                                        Using steam or alcohol to loosen the glue. Mr X carefully opens the old letter and replaces the old blank floppy with the one with the source code on it. He then seals the letter to make it look like it has never been opened.

                                        Mr X takes you to court and places before the judge a sealed Registered/Certified/Signature req'd letter that he says has NEVER been opened that has the source code to the program that you took from him!

                                        What would you do?

                                        -------

                                        Here is another case:

                                        Mr Y steals your wonderful program and its source code and starts marketing it himself! He even files a copyright on the program, knowing that you did not.

                                        You take him to court! You place before the judge a sealed Registered/Certified/Signature req'd letter has never been opened that has the source code to the program.

                                        Mr Y persents his copyright on the program and then claims that you did what Mr X did!

                                        Oh My!

                                        Tim


                                        ------------------

                                        Comment

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