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                   Copyrighting Public Domain Programs
                             August, 1982

                                   by

                            June B. Moore, JD
                      Member, California State Bar



     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 "pre-empted" 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.

               ----------------------------------

     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 - Attorney-at-Law
32 Salinas Avenue
San Anselmo, CA 94960
Telephone: (415) 456-5889
Also: Marin RBBS - (415) 383-0473
 


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