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Copyrighting Public Domain Programs

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by June B. Moore, JD

Member, California State Bar

Also: Marin RBBS

There is concern about the copyright status of the programs provided by innovative and diligent members of the CP/M Users Group to the Group with the understanding, explicitly stated or otherwise, that the programs were contributed to the "public domain."

The term "public domain" means, from a legal point of view, a program or other work that does not have copyright protection. The indiscriminate use of the word confuses the copyright issues. A work disclosed to a specific group of people for a limited purpose is not necessarily "public domain" software.

A new federal copyright law went into effect on January 1, 1978, which complicates the following discussion for that software written and/or contributed prior to that date. I will start with a discussion of the law as it applies now and to programs written after January 1, 1978. The new law is Title 17, U.S. Code. Any written material (including computer programs) fixed in a tangible form (written somewhere, ie a printout) is considered copyrighted without any additional action on the part of the author. Thus, it is not necessary that a copy of the program be deposited with the Copyright Office in Washington for the program to be protected as copyrighted.

A contribution of a program to the members of the public (CP/M Users Group) for their noncommercial use constitutes a license for that purpose and that purpose only. It does not destroy the programmers rights in the copyright to the program. HOWEVER, the government does not enforce the programmers rights. A copyright is a property right, just like the right you have in the house you own. If someone trespasses on your property, the cops may come and put the fellow in jail, but they will not stop him from doing it again nor will they procure compensation for any damage the intruder may have done to your property. You have to do that yourself by going to court. So it is with copyrights. In order to prevent anyone from selling your programs you must ask a court (federal) to stop him by an injunction and to give you damages for the injury he has done to you by selling the program.

Going to court requires that the program be registered with the Copyright Office in Washington,D.C. The fee is $10.

The government will prosecute CRIMINAL copyright infringements, such as where someone simply copies (as in copying an audio or videotape) for profit, and when the government can show criminal intent (ie, knowing violation of the law or fraud in the acts of the copier). This is not done very frequently except in the case of wholesale audio and video taping pirates.

The copyright law has a concept known as a "derivative work." A derivative work is one which is based on a work already entitled to and protected by copyright. The original author of a work has the sole rights to "derivative" works derived from his work. He can authorize (license) others to prepare derivative works from his work, as in the case of a programmer of a Users Group program who says "If anyone fixes this for a DCHayes MM-100, let me know."

I suspect that many of the programs contributed to the Group and their modifications fall within this category of license - that is, users have been allowed to prepare derivative works. However, the original author does not lose his original copyright! And all the derivative works made using the original are dependent on the continuation of the license except as to the parts added by the author of the derivative works. A simple explanation might help: A program provides for generating data showing ratios for sales to inventory turnovers (I know the example is silly), and the output is simply a bunch of numbers. The second programmer decides to enhance the program by turning the numbers into some kind of chart or graph. The program that generated the numbers is protected as to the original author. The output formatting ONLY is protected as a license derivative work to the second programmer.

The restriction placed on the programs in recent years limiting use to individuals on their personal machines and denying use of a program for commercial purposes is probably a valid restriction of the license granted in the CP/M Users Group Library. It constitutes fair warning to all who would lift the program and attempt to convert it to commercial purposes that such use is not licensed. It is not clear that such restriction applies automatically to earlier donations to the Group, unless there is something explicit in the documentation that accompanies the work itself when it is distributed.

In many instances, the programs donated prior to 1978 were not copyrighted (that is, contained no copyright notice and were not registered with the Copyright Office). The status of these programs is not clear, although a case can be made that they were initially distributed only to paid-up members of the CP/M Users Group. My documentation from the Users Group, which is undated but which is postmarked June 13, 1978, states "The material [donations of programs] is received by the Group with the understanding that the contributor is authorized to make it available to hobbiests for their individual non- commercial use.....Members receiving material are free and encouraged to share it with other hobbiests for their individual non- commercial use." The membership information included a request for any member's knowledge of persons violating the non-commercial restriction on the programs distributed. A membership fee of $4 was charged for 1978 as a prerequisite to receiving material.

This limitation on the prospective use of a program obtained from the group indicates that the distribution was limited to non-commercial users. Pre-1/1/78 software that was not automatically copyrighted and did not contain a copyright notice could be protected only under state laws in existence at that time. The state laws varied considerably but generally the rule is that, if the work was not distributed willy-nilly to the public without restriction, the state law protected the work even if the federal law niceties were not complied with. The problem is whether the restrictions of the CP/Users Group distribution were sufficient limitations on the "publication" of the program. Publication destroys a state law copyright, making the work free to all. "Publication" here means making it available to the public at large, even though restrictions were placed on the initial disclosure of the program. That is something only the court or jury actually hearing the case can decide and may well turn on facts not available to me. For example, was any real effort made to prevent computer stores from distributing the programs to their customers who were not members of the Group? Were the non-commercial use limitations explained to those customers? To the computer stores?

One other concern has been expressed by some program authors, those authors who have desired not to have their programs modified but whose programs have nonetheless been modified.

Referring to the discussion above about the limitations on use of contributed programs, if the limitation did not authorize anything but "use" of the program, then the modifications constituted "derivative" works that were not authorized. This, unfortunately, would be a very tricky thing to prove, and it would have to be proved - how did the parties understand the authorization to use the programs (ie, was modification prevented but noncommercial use allowed?). If there was an implied license to modify (for example, because the program was included with other programs in which modifications were explicitly authorized), it might be very difficult to prove infringement under either the state or federal law, depending on which was applicable.

It should be clear from the above, however, that modifications of programs entitled to copyright protection are infringements if they are not authorized by the owner of the copyright in the original program. The problem is in the proof of lack of authorization.

Since January 1, 1978, all programs are protected by federal copyright laws without regard to copyright notice or registration with the Copyright Office and the state laws no longer apply. The federal law "preempted" the state laws on that date. But the federal rules apply across the board ONLY to works first "fixed" or "written" after that date. However, improvements or modifications in one's own program can qualify for federal copyright protection under the new law and perhaps registration of their works as well as including the copyright notice somewhere in the program.

It is obvious that most volunteer programmers do not have the finances or time, or inclination for that matter, to pursue a legal remedy in the courts. At the same time, they do not want the software they authored to be used by others for commercial gain without some control over its use.

I suggest that microcomputer software authors nation-wide form an organization similar to that of ASCAP or BMI, although on a smaller scale, to monitor improper uses of software donated to the hobbiest for personal use. Only through concentrating the efforts and power of all authors can real protection be obtained. Otherwise, the unscrupulous vendor is going to take his chances that the individual programmer will not or can not defend his copyright.

Such a group might be formed with the support of an active computer group like the NJ Amateur Computer Group or the Homebrew Computer Club in California. Or it could be established independently if there were sufficient interest and an organizer could be found to do the necessary paperwork, collect the dues needed to provide a war chest, and hire the attorneys and other persons necessary. It wouldn't have to be a full time job for anyone but it would have to be more than volunteer activity.

My suggestion appeared (anonymously) in an article in the July 1982 Microcomputing. I am not interested in doing it, although I would cooperate with any efforts along these lines with counsel and advice.

I suggest, however, that an early attack, which might include programmers for profit whose programs are slightly modified by fly-by-night vendors without compensation, will establish the principles necessary to deter future invasions of your copyrights.

June B. Moore, JD

Member, California State Bar