In 2011, Marc Andreessen famously wrote that “software is eating the world.” His prediction was that software companies would disrupt traditional industries due to ease of access and low cost.  Since then, Amazon, Netflix, Airbnb, and others have disrupted the world as we knew it.  With software being omnipresent in our lives, the first question you might be asking is: is software code protected by copyright? Yes under copyright law software code is a literary work just like a book.

Computer software is instructions that, from source code, generates object code or executable code. It takes a lot of time and skill to create complex software. Therefore, it is normal to want to protect all your hard-earned work. 

Commercial realities influence what type of protection is appropriate for software. Patents, copyrights, and trade secret laws are the most common avenues for securing software. Trade dress protection for user interfaces can also be done.

Copyright laws can be used to protect your original software and source code.  Additionally, patent law may protect concepts and inventions powered by software. But what else can be protected? Read on to learn more about these important topics and protect your software.

Software, As Original Work, Is Protectable

Copyrights are a way of ensuring the protection of original works. Here, the term “original work” is not limited to books and literary works. In addition to books, software falls under the category of computer programs, as long as they are produced on a specified medium (such as disk, tape, wireless packets, among others).

Section 101 of the Copyright Act defines a copy as a material object “in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.”  Section 101 provides that a work is “fixed” in a tangible medium of expression “when its embodiment in a copy . . . by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”  For software, a “copy” can be stored on a disk.

Section 102(b) excludes copyright protection for “any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work.”

Section 106 sets forth the exclusive rights of the copyright holder, including the right to “reproduce the copyrighted work;” “to prepare derivative works based upon the copyrighted work;” and “to distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending.

We will next discuss how to use the copyright system to protect your code, graphical user interface designs, and documentation/user manuals.

Copyright law protects words, codes and other forms as creative works, just like a book, movie or work of art and thus protectable. Source code or computer program commonly includes a set of instructions expressed as code, text, transition tables, flowcharts, graphical schemes, or other forms. These instructions can cause a computer to do a specific task or produce a result.

Many computer software and even a simple spreadsheet can be protected by copyright laws. Although registration at the U.S. Copyright Office is not necessary for protection, it is required to register in order to assert copyright and file a federal copyright lawsuit. In addition, timely registration may give copyright owners additional rights. A copy of the work must be submitted to the Copyright Office along with a completed application form.

While copyrights are owned by the author, the doctrine “Work Made for Hire,” allows employers to claim ownership of copies of works created within the scope and control of employees’ employment. If the work meets certain criteria, employers can claim copyright ownership. Copyright owners can also transfer their rights under federal law. Software companies may license or sell their software to other companies. These transfers must be made in writing and signed off by the copyright holder.

Copyright registration provides the rights owner to reproduce, create derivative works from, distribute, and publicly perform the source code. Your end-user license may also restrict copying, reverse engineering, transfer, and disclosure of the code. In general, software companies should avoid releasing source code without a confidentiality agreement and strict licensing terms.

The process of copyright registration is different in each country. In the US, it is a single form. The majority of information requested is simple: title, author, publication date, copyright owner, contact information, among others.  A deposit of identifying portions of the code will also be needed.

Software often contains audio files, images or text from another source. You will be asked to describe what copyright entails and list elements licensed from other locations. Next, you will need to select a category. Software is usually registered as a literary piece because it is technically written in numbers and letters. However, you can choose visual arts, performing arts, or visual arts if images or animations are important to your product.

Software copyright protection include:

Computer software is written in two versions: source code, which is the version readable by human beings, and machine readable code, which is the form interpreted by machines. The former represents the author’s original expression. The latter contains the actual HTML code downloaded from a server to a browser accessible to an end-user. Both forms of computer software codes are protected by copyright laws.

U.S. copyright law covers cloud-based material in the same manner as other creative works. This includes both software code and UI elements that are used with SaaS products. Unless ownership is transferred to another party through agreement, the copyright interest in the work arises upon its creation. It gives the author, or the author’s employer, the exclusive right to reproduce and distribute the cloud software. As detailed above, you should  register the SaaS works in case you want to sue a copier and claim damages.

Cloud-based software may require users to have a copyright license. Although the offering of the service may be understood to confer an implied license, most service providers will clearly define the scope of the license in the Terms of Use.

SaaS providers also have certain protections under federal law, such as fair use and first sales doctrines. These protections, however, are not applicable in all cases. It is therefore important to consult an attorney before you distribute software or SaaS.

Computer software is written in two versions: source code, which is the version readable by human beings, and object code stored on a disk and read when the user executes the object code on a computer. Both forms of computer software codes are protected by copyright laws.

In the pre-SaaS days, software is distributed on disks or CD-ROMs.  These days, software can be distributed over the Internet.  Executable code can be downloaded over the internet. 

Some companies include small unnecessary components into their code.  The redundant code at a predetermined location of the executable code makes it easy to prove that a copyright violation has taken place.

Regardless of the medium, copyright laws apply to protect the object code as a creative work. 

In addition to legal protection, you can reduce unauthorized use of your code by making it simple to purchase your software, renew subscriptions, or update accounts.  Further, you can set pricing models and packages that are affordable and suit your customers’ needs. People are generally happy to pay what they need, but they don’t want to pay extra for features or copies they don’t use.

Users manuals are works of authorship, thus they are entitled copyright protection. Generally, copying portions of manuals requires permission from the copyright holders.

API

APIs, or application programming interfaces, define the parameters by which software applications communicate with each other. APIs are used by all types of apps — social media, news and weather, financial, maps, video conferencing. 

The issue of copyright and computer code has reached the Supreme Court of the United States where the two companies involved in the lawsuit, Google LLC and Oracle America, Inc., fought over whether Google’s copying of 11,500 lines of code from Oracle’s Java in the Android operating system was fair use.  

While siding with Google, the court sidestepped the fundamental IP issue — whether or not Oracle’s software code at the heart of the case is copyrightable.  As such, APIs may be copyrightable and if you want to protect your API, talk to an IP lawyer to understand the nuances of API copyrightability.

Open-Source Software Is Often Copyrighted

When you download or install software from an open-source project, you may not realize that it is copyrighted. The software, while copyrighted, is distributed under a license allows you to access/use the source code of the software, and you may use it if you follow certain rules. Popular copyleft open source licenses include AGPL, GPL, LGPL, EPL, and Mozilla, among others.

On the other hand, closed source or “proprietary” software does not give you the source code but only the executable or object code and prior to use, you must pay a license fee or obtain permission to use it.

Open-source software is typically used in a variety of categories, including databases, programming tools, application servers, enterprise middleware, and virtualization. Previously, it was free to download, but that the quality was not as good as proprietary software. Today, however, this has changed.  For example, the Linux operating system has made significant improvements in UI and is now as easy to use as Windows and MacOS. With more free open-source software available, there is a wide variety of applications and services for you to download, and it’s hard to beat the price.

There are also several types of copyrighted software. Shareware is one example. Consumers can download shareware and try it for free, but they need to understand that they need to pay the author for a license to continue using it. On the other hand, freeware, on the other hand, is released on a “honor system” with no restrictions. You can download the software for free and try it out for yourself, or pay the developer a small registration fee or make a donation to them in return for additional services.

Consider Trade Secret Protection for Software Running Behind Company Firewalls

Copyright law protects you from unauthorized use of your intellectual property. Trade secrets are classified as “secrets” because they cannot be disclosed to the public. Unlike patented or copyrighted works, they are not subject to a time limit and are only available to the company that created them. In addition, trade secrets can disappear without warning if they are disclosed. This is the reason why copyright law is so important for protecting your business.

Trade secrets are valuable business information. This information includes marketing plans, cost and price information, and even customer lists. In some cases, trade secrets include “negative know-how,” or the techniques and methods that a business uses to improve its products. This information is as valuable as the working products that the business produces. However, it is not uncommon for trade secrets to be overlooked or not fully protected by copyright laws. If your trade secrets are leaked, they become public knowledge.

Patent and trade secret laws protect your intellectual property. The U.S. government can protect your trade secrets through criminal penalties. Trade secret cases have increased by more than fivefold since the first half of the year. This number is likely to climb in the coming years. The government has also stepped in to protect trade secrets, with a federal civil cause of action for misappropriation. It is also important to understand how trade secret law works in the fast-paced innovation ecosystem.

A company can protect its trade secrets by keeping them within the company. Trade secrets can also be protected by patenting. Having a patent on your products protects you from competitors who might use your ideas. It is also vital for investigative reporting because it requires confidential sources. So, protect your trade secrets and don’t allow someone to use them in any way. It will only make your job easier! Its Trade Secrets

While patents and trade secrets have their own limitations, both laws protect the same information. Trade secrets are more broadly defined than patents. Your decision whether to protect your trade secrets depends on your business needs and on the relative benefits of intellectual property protection. To get a better understanding of trade secrets, watch this USPTO video. It will give you an overview of this valuable tool. Consider it in your business.

To protect your trade secrets, you must show that the other party used or disclosed the secret in the course of business. This is easier said than done. Generally, you must prove that the person used or disclosed the secret without the permission of the original owner. This means that if your trade secrets are in the hands of a competitor, you may be able to prevent him from working for a rival. However, if you do decide to take this step, you need to ensure that your employees are not working for your competitor.

Software copyright grants intellectual property rights that include:

  • You have the right to store and reproduce the work using any electronic method.
  • Right to issue copies of the work to public.
  • Right to display the software.
  • Translation of the work in any format
  • Creation of adaptations of the work.
  • You can either rent or sell the work.

When a piece of software is created, it automatically has copyright, unless the owner chooses to abandon it.

However, it is not very effective. It means that others are not allowed to copy your software. At least in the United States, you cannot sue anyone for copying your copyright without first registering with the U.S. Copyright Office. Software copyright protection ensures that your software is not copied and used illegally. If they have abandoned their copyright, the software can no longer be protected.

The same holds true for Open source software, Machine-readable software, and Original works. Transient copies of software, however, do not have copyright protection. Below, we’ll discuss the basics of copyright protection for software.

Software developers face copyright issues that are not as straightforward as they appear. The basic fact is that published software in the United States is automatically copyrighted. It’s legal to put the (c) symbol in your software. You won’t be allowed to enforce your copyright until you have registered the copyright.

The process of copyright registration is different in each country. In the US, it is a single form. The majority of information requested is simple: title, author, publication date, copyright owner, contact information, etc.

copyright

Prices will vary depending on the type of registration you make and the method you use to file your copyright.

The cost to register your copyright depends on the type of registration you are making and whether you are registering online or via mail.  In general, the Copyright Office charges small amounts. To make sure you pay the correct amount to register your copyright, please refer to the current fee schedule.

The answer is No, Copyright renewal is not an issue regardless of who registered the copyright. Copyright holders used to have to submit an application and pay a fee around the halfway point of the duration of their copyright. The copyright would expire if it was not renewed. The copyright laws have changed and you no longer need to renew your copyright. Instead, creators have the option to make their copyright available to the public through an opt-out program.

Copyright is a way to protect works and ideas that are not protected by trademarks or patents. This is an important form of intellectual property protection, particularly in this age of online sharing and social media.

While copyrighting your work might not be your first priority, understanding how others could assert copyrights against your work is an important part in protecting yourself online. Realizing that copyrights can last a lifetime is a big part of this.

Even if you do not put (c) on your work you automatically receive copyright protection when your work of expression is fixed in a tangible media. This means that the copyright is yours and that no one can copy, distribute or display the work.

Problem arises if someone violates your copyright when you have not registered the copyright. The protection you have is not automatic. Once you get registration, you can file a federal lawsuit to force the other party to stop infringing and compensate you.

The U.S. Supreme Court ruled that you cannot file a lawsuit unless the copyright has been registered with the U.S. Copyright Office. You cannot stop an infringer until you register. 

Unauthorized copies of your software are a loss of revenue. These copies could also cost you money, in addition to missing an opportunity. It is possible to provide service for software copies that you have not paid for. You could endanger your brand’s reputation when third parties sell counterfeit or obsolete versions at your expenses. Piracy can result in serious data security breaches, especially in the worst cases.

Direct copies of code and versions of the software rewritten in another language may infringe on the copyright of the original author. Copyright licenses are required to use the software, and even a small amount of code copied from memory may be an infringement. The terms of the license must be followed.

Many forms of copyright violation or infringement of software work can occur. Next we discuss examples of infringers creating a duplicate of a software program:

  • End-users who use unlicensed (or pirated) software on their systems is considered a software copyright violator.
  • Copyright infringement can occur during the upload and download of pirated software from the internet.
  • Pirated software solutions are the most frequent type of software copyright violation.
  • One licensed copy of software may be used by multiple people/organizations. Software copyright infringement is also known as license sharing.

1. Access to copyrighted material

It is essential to prove that the accused infringer was able to view your software program and copy it in order for you to establish an infringement case.  This is relatively easy to do if your software has been released to the public.

If your source code is kept secret and the software program is restricted to a small number of people, this can be a problem. You should also monitor the activities of potential infringers, especially if they are close to you.

2. Demonstrate similarity to your software program

It is crucial that you prove the product has substantial similarities to your work in a case of software copyright.

There should be significant similarities between the infringing and original work. This means that the similarities between the original work and infringing work must be substantial. If, for instance, there is a common source for both programs of software, substantial similarity can be proved.

As a rule of thumb, however, if the average user of your software confuses your software with the infringing works, it’s likely that a court will also find that they are substantially similar.

images

3. Fair Use Exceptions

The Fair Use doctrine provides a defense to copyright infringement. Fair use can apply in many cases, including copying and repurposing software for noncommercial purposes. However, you must adhere to the law carefully, as violations can have very serious consequences.

The process of determining whether a particular use of a copyrighted piece of software is fair depends on four factors: the nature of the work, how it is used, and whether it will affect the value of the work in the market. Adapting the law to evolving technologies and the needs of higher education is crucial to keeping the concept of fair use relevant and up-to-date. So, what is fair use?

As far as fair use goes, the courts favor “transformative” uses. This means that copyrighted works are more likely to be recognized as fair use when they are used in a different way from their original form. Examples of this kind of use include citations in academic papers, pieces of work mixed into a multimedia product, and commentary and criticism. It is important to note that the court focuses on the first two factors, as they are the most common.

There is no specific quantity limit for fair use. However, the more material that is lifted from the original, the less likely it will be considered fair. The amount used must be proportional to the length of the original work and the need to accomplish the intended objective.

Infringement remedies include impoundment, destruction, damages, profits, and attorney fees at the discretion of the court.

Copyright protects computer programs for up to 70 years from the date of their author’s death. They become public domain when the copyright on computer program is lost.

The rights of the author are transferred to his heirs upon his death. The rights the author has transferred in his lifetime are still owned by the persons to whom he transferred them.

The date of the work determines the time limit. Anything created after January 1, 1978, for example, is protected for the author’s life plus 70 years. However, there are exceptions to this rule.

  • Anonymous work
  • Pseudonymous (written in a false name) work
  • Hired works (work done by an employee to do his job)

These works are valid for 95 years after their first publication or 120 year from their creation, whichever comes first.

Patents Provide Much Greater Protection

Copyright does not protect facts, ideas or systems. It only protects how these things are expressed.  Since copyright laws only protect expressions and not functionality, copyright protection may not work well if third parties are able to legally reverse-engineer the code.  For example, third parties can view the source code through decompilers and other tools to understand the functionality and then independently recreate the code.  This is the technique used by AMD to reverse engineer the 386 processor micro-codes. 

AMD used two teams, one team to view the Intel microcode and generate software requirements for each microcode, and a separate team operating to develop/reverse-engineer the code in a clean environment without any access to the Intel microcode.  The result by the second team is a clean reverse-engineered micro-code that runs the Intel 386 compatible instruction set free of copyright issues.

Software patents can protect certain features of a program that may not be protectable under copyright or trade secret laws. Patents can be used to stop others from using a particular algorithm without permission, or to prevent others creating software programs that perform patent-protected functions.

Software is patentable in the United States. Software patents are often referred to computer-implemented processes. Software can be granted U.S. patent protection if it is unique, tied to a machine, and is not otherwise known. Software must be patentable if it is unique and tied to a machine. It is unlikely that software can be patentable just by doing what is already known (e.g. adding numbers together). U.S. patent law does not allow for “abstract ideas” and has been used to reject some patent applications that involve software.

Copyright law, however, protects only one expression of an idea. Copying the source code or a part of it is allowed, but not the idea/functionality.

Thus, if you want to broaden the scope of protection, you should seek patent protection to protect the functionality of software programs.