Software copyright
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Software copyright is the relatively recent extension of copyright law to machine-readable software. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright law, there are a number of distinctive issues that arise with software. This article will primarily focus on topics peculiar to software.
Software copyright is commonly used by proprietary software companies to prevent the unauthorized copying of their software. Open source licenses also rely on copyright law to enforce their terms. For instance, copyleft licenses impose a duty on licensees to share their modifications to the copylefted work under some circumstances. No such duty would apply had the software in question been in the public domain.
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[edit] United States
In the United States, computer programs are literary works, under the definition in the Copyright Act, 17 U.S.C. § 101 [1].
Just as with other works, copyright for computer programs prohibits not only literal copying, but also copying of "nonliteral elements", such as program structure and design. These non-literal aspects, however, can be protected only "to the extent that they incorporate authorship in programmer's expression of original ideas, as distinguished from the ideas themselves." [2] In Computer Associates vs Altai, the Second Circuit proposed the Abstraction-Filtration-Comparison test for identifying these protected elements. This test attempts to distinguish copyrightable aspects of a program from the purely utilitarian and the public domain.
The graphics, sounds, and appearance of a computer program also may be protected as an audiovisual work; as a result, a program can infringe even if no code was copied.[3] The set of operations available through the interface is not copyrightable in the United States under Lotus v. Borland, but it can be protected with a utility patent. In Apple v. Microsoft, the courts established that a look and feel copyright claim must demonstrate that specific elements of a user interface infringe on another work. A program's particular combination of user interface elements is not copyrightable.
[edit] History
Historically, computer programs were not effectively protected by copyrights because computer programs were not viewed as a fixed, tangible object: object code was viewed as a utilitarian good produced from source code rather than as a creative work. Due to lack of precedent, this outcome was reached while deciding how to handle copyright of computer programs. The Copyright Office attempted to classify computer programs by drawing an analog: the blueprints of a bridge and the resulting bridge compared to the source code of a program and the resulting executable object code[4]. This analogy caused the Copyright Office to issue copyright certificates under its "Rule of Doubt".[5]
In 1974, the Commission on New Technological Uses of Copyrighted Works (CONTU) was established. CONTU decided that "computer programs, to the extent that they embody an author's original creation , are proper subject matter of copyright."[4] In 1980, congress added the definition of "computer program" to 17 U.S.C. § 101 and amended 17 U.S.C. § 117 to allow the owner of the program to make another copy or adaptation for use on a computer. [6]
This legislation, plus court decisions such as Apple v Franklin clarified that the Copyright Act gave computer programs the copyright status of literary works. Many companies began to claim that they "licensed" but did not sell their products, in order to avoid the transfer of rights to the end user via the doctrine of first sale (see Step-Saver Data Systems, Inc. v. Wyse Technology). These software license agreements are often labeled as end-user license agreements (EULAs).
In 1998, Congress passed the Digital Millennium Copyright Act (DMCA) which criminalizes evasion of copy protection (with certain exceptions), destruction or mismanagement of copyright management information, and a clause to except ISPs from liability of infringement if one of their subscribers infringe. In addition, the DMCA extends protection to those who copy a program for maintenance, repair or backup as long as these copies are "destroyed in the event that continued possession of the computer program should cease to be rightful."17 U.S.C. § 117
[edit] EULAs and Rights of End users
The Copyright Act expressly permits copies of a work to be made in some circumstances, even without the authorization of the copyright holder. In particular, "owners of copies" may make additional copies for archival purposes, "as an essential step in the utilization of the computer program", or for maintenance purposes. [7] Furthermore, "owners of copies" have the right to resell their copies, under the first sale doctrine and 17 U.S.C. § 109.
These rights only apply to "owners of copies." Most software vendors claim that their products are "licensed, not sold", thus sidestepping 17 U.S.C. § 117. American courts have taken varying approaches when confronted with these software license agreements. In MAI Systems Corp. v. Peak Computer, Inc., Triad Systems Corp. v. Southeastern Express Co., and Microsoft v Harmony [8], various Federal courts held that "licensed, not sold" language in an EULA was effective. Other courts have held that "no bright-line rule distinguishes mere licenses from sales...The label placed on a transaction is not determinative".[9] The Ninth Circuit took a similar view (in the specialized context of bankruptcy) in Microsoft v DAK. [10]
[edit] Fair Use
Fair use is a defense to an allegation of copyright infringement under section 107 of the Copyright Act. This section describes some of the uses of copyrighted software that courts have held to be fair. In Galoob v. Nintendo, the 9th Circuit held that modification of copyright software for personal use was fair. In Sega v. Accolade, the 9th Circuit held that making copies in the course of reverse engineering is a fair use, when it is the only way to get access to the "ideas and functional elements" in the copyrighted code, and when "there is a legitimate reason for seeking such access".
[edit] India
Software is copyrightable in India, but enforcement is very difficult. [11]
[edit] Canada
In Canada software is protected as a literary work under the Copyright Act of Canada. Copyright is acquired automatically when an original work is generated, the creator is not required to register or mark the work with the copyright symbol in order to be protected[12]. The rights holder is granted: the exclusive right of reproduction, the right to rent the software, the right to restrain others from renting the software and the right to assign or license the copyright to others. Exceptions to these rights are set out by the terms of Fair Dealing, these exempt users from copyright liability covering usage and reproduction when performed for private study, criticism or research. Changes to the Copyright Act in regards to digital copyright were debated in the Canadian Parliament in 2008. Bill C-61 proposed alterations of the breadth and depth of exemptions for uses such as personal back-ups, reverse engineering and security testing.
[edit] Copyleft
A copyleft is a type of copyright license that allows redistributing the work (with or without changes) on condition that recipients are also granted these rights.[13]
[edit] References
- ^ Apple v Franklin, 714 F.2d 1240 (3d Cir. 1983)
- ^ Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992)
- ^ Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855 (2d Cir.1982)
- ^ a b Lemley, Menell, Merges and Samuelson. Software and Internet Law, p. 34
- ^ Rule of Doubt
- ^ Lemley, Menell, Merges and Samuelson. Software and Internet Law, p. 35
- ^ 17 U.S.C. § 117
- ^ Microsoft Corp. v. Harmony Computers & Elecs., Inc., 846 F. Supp. 208 (E.D.N.Y. 1994)
- ^ Vernor v. Autodesk, Inc., 555 F.Supp.2d 1164 (W.D.Wash. 2008).
- ^ Microsoft Corp. v. DAK Indus., Inc., 66 F.3d 1091 (9th Cir. 1995)
- ^ Meeker, Heather, "Only in America? Copyright Law Key to Global Free Software Model, LinuxInsider, May 16, 2006
- ^ http://www.cipo.ic.gc.ca/epic/site/cipointernet-internetopic.nsf/en/wr00090e.html
- ^ Defined at http://www.fsf.org/licensing/essays/categories.html, with rationale and more detail at http://www.fsf.org/licensing/essays/copyleft.html.
