Software copyright
Encyclopedia
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 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
.
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 and amended 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 agreement
s 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, and a clause to exempt 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."
These rights only apply to "owners of copies." Most software vendors claim that their products are "licensed, not sold", thus sidestepping . American courts have taken varying approaches when confronted with these software license agreement
s.
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.
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".
is a type of copyright license that allows redistributing the work (with or without changes) on condition that recipients are also granted these rights.
. Copyright is acquired automatically when an original work is generated, the creator is 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 private study, criticism or research.
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.
.
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 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."
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.
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.
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
law to machine-readable
Machine-readable medium
In telecommunication, a machine-readable medium is a medium capable of storing data in a machine-readable format that can be accessed by an automated sensing device and capable of being turned into some form of binary.Examples of machine-readable media include magnetic disks, cards, tapes, and...
software. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
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 proprietary software
Proprietary software
Proprietary software is computer software licensed under exclusive legal right of the copyright holder. The licensee is given the right to use the software under certain conditions, while restricted from other uses, such as modification, further distribution, or reverse engineering.Complementary...
companies to prevent the unauthorized copying of their software. Open source licenses also rely on copyright law to enforce their terms. For instance, copyleft
Copyleft
Copyleft is a play on the word copyright to describe the practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work...
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
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
.
History
Historically, computer programs were not effectively protected by copyrights because computer programs were not viewed as a fixed, tangible object: object codeObject code
Object code, or sometimes object module, is what a computer compiler produces. In a general sense object code is a sequence of statements in a computer language, usually a machine code language....
was viewed as a utilitarian good produced from source code
Source code
In computer science, source code is text written using the format and syntax of the programming language that it is being written in. Such a language is specially designed to facilitate the work of computer programmers, who specify the actions to be performed by a computer mostly by writing source...
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 and amended 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
Step-Saver Data Systems, Inc. v. Wyse Technology
Step-Saver Data Systems, Inc. v. Wyse Technology was a case in the U.S. Court of Appeals for the Third Circuit primarily concerned with the enforceability of box-top licenses and end user license agreements and their place in U.S. contract law...
). These software license agreement
Software license agreement
A software license agreement is a contract between the "licensor" and purchaser of the right to use software. The license may define ways under which the copy can be used, in addition to the automatic rights of the buyer including the first sale doctrine and .Many form contracts are only contained...
s are often labeled as end-user license agreements (EULAs).
In 1998, The United States Congress passed the Digital Millennium Copyright Act
Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
(DMCA) which criminalizes evasion of copy protection (with certain exceptions), destruction or mismanagement of copyright management information, and a clause to exempt 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."
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 .These rights only apply to "owners of copies." Most software vendors claim that their products are "licensed, not sold", thus sidestepping . American courts have taken varying approaches when confronted with these software license agreement
Software license agreement
A software license agreement is a contract between the "licensor" and purchaser of the right to use software. The license may define ways under which the copy can be used, in addition to the automatic rights of the buyer including the first sale doctrine and .Many form contracts are only contained...
s.
In MAI Systems Corp. v. Peak Computer, Inc.
MAI Systems Corp. v. Peak Computer, Inc.
MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 , was a case heard by the United States Court of Appeals for the Ninth Circuit which addressed the question of whether or not the loading of a software program into RAM by a computer repair technician makes a copy of the software that is a...
, 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.
Microsoft Corp. v. DAK Industries, Inc.
Microsoft Corp. v. DAK Indus., Inc. 66 F.3d 1091 is a court case in which Microsoft contended that in being licensed the rights to sell Microsoft Word software units, the then bankrupt DAK Industries had been granted permission to use this Intellectual Property, so Microsoft was entitled to...
Fair use
Fair useFair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
is a defense to an allegation of copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
under section 107 of the Copyright Act
Copyright Act
Copyright Act may refer to:Canada* Copyright Act of CanadaHong Kong*Copyright Ordinance 1997India*New Zealand* Copyright Act 1994United Kingdom...
. This section describes some of the uses of copyrighted software that courts have held to be fair.
In Galoob v. Nintendo
Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.
Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. was a court case which established the rights of users to modify copyrighted works for their own use....
, the 9th Circuit held that modification of copyright software for personal use was fair. In Sega v. Accolade
Sega v. Accolade
Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 , is a significant case in American intellectual property law. The case involved several overlapping issues, including the scope of copyright, permissible uses for trademarks, and the scope of fair use for computer code.This case had two...
, the 9th Circuit held that making copies in the course of reverse engineering
Reverse engineering
Reverse engineering is the process of discovering the technological principles of a device, object, or system through analysis of its structure, function, and operation...
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".
Copyleft
A copyleftCopyleft
Copyleft is a play on the word copyright to describe the practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work...
is a type of copyright license that allows redistributing the work (with or without changes) on condition that recipients are also granted these rights.
Canada
In Canada software is protected as a literary work under the Copyright Act of CanadaCopyright Act of Canada
Copyright Act of Canada is Canada's federal statute governing copyright law in Canada. The Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988 and 1997. In 2005 an attempt to amend the Canadian Copyright Act was made but Bill C-60 did not pass into law before...
. Copyright is acquired automatically when an original work is generated, the creator is 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 private study, criticism or research.
Changes to the Copyright Act in regard to digital copyright were debated in the Canadian Parliament in 2008. Bill C-61
Bill C-61 (39th Canadian Parliament, 2nd Session)
Bill C-61, An Act to amend the Copyright Act, was a bill tabled in 2008 during the second session of the 39th Canadian Parliament by Minister of Industry Jim Prentice. The bill died on the order paper when the 39th Parliament was dissolved prematurely and an election was called by the Governor...
proposed alterations of the breadth and depth of exemptions for uses such as personal back-ups, reverse engineering and security testing.
India
Software is copyrightable in India. Recently, Copyright Office, New Delhi has copyrighted the Hindi to Punjabi Machine Translation Software developed by Dr. Vishal Goyal and Dr. G.S.Lehal, Punjabi University Patiala. .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 form the date of assignment ( section 1995) 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 back to Pine Labs after 5 years. See Assignment of Copyright in SoftwareAssignment of copyright in software under Indian Copyright Act
Assignment of copyright in India - outsourced software contractsThe Delhi High Court in a recent judgment has laid down the law in regard to ownership and assignment of copyright for computer software. In the matter of Pine Labs Private Limited vs Gemalto Terminals India Private Limited and others...
.
United States
In the United States, computer programs are literary works, under the definition in the Copyright Act, .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 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."
In Computer Associates vs Altai
Computer Associates Int. Inc. v. Altai Inc.
Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 is a decision from the United States Court of Appeals for the Second Circuit that addressed to what extent non-literal elements of software are protected by copyright law. The court used and recommended a three-step process...
, the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
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.
The set of operations available through the interface is not copyrightable in the United States under Lotus v. Borland
Lotus v. Borland
Lotus Development Corporation v. Borland International, Inc., 516 U.S. 233 , is a United States Supreme Court case that tested the extent of software copyright...
, but it can be protected with a utility patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
.
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.
See also
- Copyright infringement of softwareCopyright infringement of softwareCopyright infringement of software=The copyright infringement of software refers to several practices which involve the unauthorized copying of computer software. Copyright infringement of this kind varies globally...
- Free software licenceFree software licenceA free software licence is a software licence which grants recipients rights to modify and redistribute the software, which would otherwise be prohibited by copyright law. A free software licence grants, to the recipients, freedoms in the form of permissions to modify or distribute copyrighted work...
- Software license agreementSoftware license agreementA software license agreement is a contract between the "licensor" and purchaser of the right to use software. The license may define ways under which the copy can be used, in addition to the automatic rights of the buyer including the first sale doctrine and .Many form contracts are only contained...
- Software patentSoftware patentSoftware patent does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a "patent on any performance of a computer realised by means of a computer program".In 2005, the European Patent Office...
- Copyright on typefaces