Software copyright is the 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 used by Software Developers and proprietary software companies to prevent the unauthorized copying of their software. Free and 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 work with the user or copy owner under some circumstances. No such duty would apply had the software in question been in the public domain.
United States practice
Copyright protection attaches to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”17 U.S.C.A. § 102. Copyright functions by granting the author the right to exclude others. Copyright protects:
- literary works
- musical works (& accompanying words)
- dramatic works (& accompanying music)
- pantomimes and choreographed works
- pictorial, graphic, & sculptural works
- motion pictures & other audiovisual works
- sound recordings
- architectural works
+ compilations and derivative works – 17 USC § 103(a).
There is a certain amount of work that goes into making copyright successful and just as with other works, copyright for computer programs prohibits not only literal copying, but also copying of "nonliteral elements", such as program's structure, sequence and organization. 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." 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.
Copyright attaches only to original works. A work is “created” when it is fixed in a “tangible medium of expression” for the first time. 17 U.S.C. § 101. Circuits differ on what it means for a work to be fixed for the purposes of copyright law and infringement analysis. 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. 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. The law is unclear as to whether transient copies – such as those cached when transmitting digital content, or temporary copies in a computer’s RAM – are “fixed” for the purposes of copyright law. The Ninth Circuit has held that “A derivative work must be fixed to be protected under the Act, but not to infringe.” 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.
History of Software Copyrights in the United States
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 analogy: the blueprints of a bridge and the resulting bridge compared to the source code of a program and the resulting executable object code. This analogy caused the Copyright Office to issue copyright certificates under its "Rule of Doubt".
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." In 1980, the United States 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.
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, The United States Congress passed the Digital Millennium Copyright Act (DMCA) which criminalizes evasion of copy protection (with certain exceptions), destruction or mismanagement of copyright management information, but includes a clause to exempt ISPs from liability of infringement if one of their subscribers infringes. 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
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. 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, 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". The Ninth Circuit took a similar view (in the specialized context of bankruptcy) in Microsoft Corp. v. DAK Industries, Inc.
By contrast, in the European Union the European Court of Justice held that a copyright holder cannot oppose the resale of a digitally sold software, in accordance with the rule of copyright exhaustion on first sale as ownership is transferred, and questions therefore the "licensed, not sold" EULAs in the EU.
Fair use is a defense to an allegation of copyright infringement under section 107 of the Copyright Act of 1976. 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".
Software Copyrights around the world
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. 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 research, private study, education, parody or satire. Changes to the Copyright Act in regard 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.
Software is copyrightable in India. Copyright in software, in the absence of any agreement to the contrary, vests in the author of the software, even for commissioned works. Copyright can be assigned or licensed through a written document, but under the Indian Copyright Act, in case the period of assignment is not specified, the period is deemed to be 5 years from the date of assignment (section 19(5) of the Copyright Act). In a recent judgement in the case of Pine Labs Private Limited vs Gemalto Terminals India Private Limited the Delhi High Court has laid down that the copyright belongs to the author (in this case, Pine Labs) and as the period of assignment was not specified in the document of assignment (the Master Service Agreement), the copyright in the software reverted to Pine Labs after 5 years. See Assignment of Copyright in Software.
Under the provision of Copyright Ordinance 1962, works which fall into any of the following categories: literary, musical or artistic are protected by Copyright law. The definition of literary work was amended by Copyright Amendment 1992 to include computer software. Section 2(p) of the ordinance defines a computer program as "that is to say programmes recorded on any disc, tape, perforated media or other information storage devices, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information". In event of infringement, civil and/or criminal proceedings can be carried out. According to Chapter XIV of Copyright Ordinance, a person can face a prison of up to 3 years and/or a penalty of up to one hundred thousand rupees if he is found guilty of renting computer software without permission of the owner. According to a study of Business Software Alliance, 84% of software in Pakistan is being used in violation of the Copyright law of Pakistan.
- 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)
- 17 U.S.C. § 101. Compare Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 127 (2nd Cir. 2008).
- Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965, 968 (9th Cir. 1992).
- Lemley, Menell, Merges and Samuelson. Software and Internet Law, p. 34
- Lemley, Menell, Merges and Samuelson. Software and Internet Law, p. 35
- 17 U.S.C. § 117
- Walker, John (2012-02-01). "Thought: Do We Own Our Steam Games?". Rock, Paper, Shotgun. Retrieved 2014-12-27.
I asked gamer lawyer Jas Purewal about this a short while back, not specifically about Valve, and he explained that the matter is still unresolved. “In fact,” he says, “it’s never been completely resolved for software generally[...]"
- 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)
- Purewal, Jas. "The legality of second hand software sales in the EU". gamerlaw.co.uk. (mirror on gamasutra.com)
- hg/mz (AFP, dpa) (2012-07-03). "Oracle loses court fight over software resale rules". dw.de. Retrieved 2014-12-30.
A European court has ruled that it's permissible to resell software licenses even if the package has been downloaded directly from the Internet. It sided with a German firm in its legal battle with US giant Oracle.
- Voakes, Greg (2012-07-03). "European Courts Rule In Favor Of Consumers Reselling Downloaded Games". forbes.com. Retrieved 2014-12-30.
Could this be the victory we need for a “gamer’s bill of rights” ? DRM is an oft-cited acronym, and resonates negatively in the gaming community. The Court of Justice of the European Union ruled in favor of reselling downloaded games. Simply put, legally purchased and downloaded games will be treated like physical copies of the game, and consumers can then sell their ‘used’ game.
- "JUDGMENT OF THE COURT (Grand Chamber)". InfoCuria – Case-law of the Court of Justice. 2012-07-03. Retrieved 2014-12-30.
(Legal protection of computer programs — Marketing of used licences for computer programs downloaded from the internet — Directive 2009/24/EC — Articles 4(2) and 5(1) — Exhaustion of the distribution right — Concept of lawful acquirer)
- Timothy B. Lee (2012-07-03). "Top EU court upholds right to resell downloaded software". Ars Technica.
- "EU Court OKs Resale of Software Licenses". AP.
- "Categories of free and nonfree software". www.gnu.org. Retrieved 2011-10-29.
- "What is copyleft?". www.gnu.org. Retrieved 2011-10-29.
- "Linux News: Tech Buzz: Only in America? Copyright Law Key to Global Free Software Model". Linuxinsider.com. Retrieved 2011-10-29.
- "Judgment in the case of Pine Labs Private Limited vs Gemalto Terminals India Private Limited and others (FAO 635 of 2009 and FAO 636 of 2009)" (PDF). lobis.nic.in. 2011-08-03. Retrieved 2011-10-29.
- COPYRIGHT FOR COMPUTER PROGRAMMES IN PAKISTAN
- The Copyright Ordinance of Pakistan 1962, Chapter XIV (PDF)
- Global Study of Business Software Alliance (PDF)