Copyrighting Public Domain Programs
by
June B. Moore, JD
Member, California State Bar
32 Salinas Avenue
San Anselmo CA 94960
(415) 456-5889
Also: Marin RBBS
(415) 383-0473
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 non-commercial 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.
^L
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 hobbyists for their individual
non-commercial use.....Members receiving material are free and
encouraged to share it with other hobbyists 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
^L
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 non-commercial 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
those interested or affected by the problem should make formal
registration of their works as well as including the copyright notice
somewhere in the program.
----------------------------------------------------
^L
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 hobbyist
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
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