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Acquiring and Protecting Copyrights in Software
Practical Law Legal Update 8-609-2985 (Approx. 6 pages)
Acquiring and Protecting Copyrights in Software
by Practical Law Intellectual Property & Technology
| Published on 21 Apr 2015 • USA (National/Federal) |
A discussion of copyright protection for software, including the formal and substantive requirements for acquiring and enforcing software copyrights and the scope and limits of software copyright protection. This Legal Update includes helpful links to resources providing greater detail on software copyrights and comparative analyses of software copyright, patent, trade secret and contract protection.
Proprietary software can be among a business's most valuable assets. Whether a company licenses software to others or uses software to provide services to customers or for its own internal operations, proprietary software can give the company a competitive edge that may be lost without legal protection.
The owner of rights in software may seek to protect these rights under any one or more of the following:
- Intellectual property (IP) laws, including the law of:
- patents (for software-enabling inventions); and
- Contractual provisions, such as confidentiality obligations and use restrictions.
- State and federal non-IP statutes.
- Common law tort claims, such as trespass to chattels.
Each form of protection has unique benefits and drawbacks. Counsel must therefore select the form or forms of protection best suited to the client's resources and needs, considering such factors as:
- The scope, strength and length of the contemplated form of IP protection.
- The potential preclusive effect of the chosen type of protection on other modes of protection.
- The levels of difficulty and expense involved in obtaining, maintaining or enforcing the contemplated form of protection.
This Legal Update contains a brief discussion of software copyrights. For more information on software copyright protection and the protections available to software rights holders under patent, trade secret and contract law, see Practice Note, Legal Protection of Software.
Software Copyrights
Software source code and object code are copyrightable as literary works if they are original and fixed in a tangible medium of expression (see Sega Enters. v. Accolade, Inc., 977 F.2d 1510, 1520 (9th Cir. 1992) and 17 U.S.C. § 102(a)).
However, because computer code is both expressive and functional, deciding which software features are eligible for copyright protection is typically more difficult than determining more traditional copyrightable subject matter. This is because the Copyright Act expressly excludes from its protection ideas, processes, systems and methods of operation, even if embodied in an otherwise copyrightable work (17 U.S.C. § 102(b)).
As a result, the courts must determine which of a program's elements are expressive, and therefore eligible for copyright protection, before deciding whether any copyrights in the software have been infringed. When doing so, they take into account the program's literal and non-literal elements, each of which may be eligible for copyright protection (see, for example, Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693, 701 (2d Cir. 1992)).
A computer program's literal elements are its source code and object code. Non-literal program elements include the structure, sequence and organization of both:
- The program as an integrated whole.
- The program's individual features or components.
To determine which program elements are copyrightable, the federal courts commonly identify and analyze each of the program's literal and non-literal elements under one of three principal tests:
- Abstraction-filtration-comparison.
- Method of operation.
- Inherent necessity.
For more details on these tests, including the decisions and courts in which they are controlling, see Practice Note, Legal Protection of Software: Determining the Copyrightability of Individual Programs.
Software Copyright Registration
While software copyright registration is not required, the benefits of registration include the rights to:
- Sue for infringement (17 U.S.C. § 411).
- Recover statutory damages and attorneys' fees (17 U.S.C. § 412).
- Use the registration as prima facie evidence of copyright validity (17 U.S.C. § 410).
- Stop the importation of infringing copies (17 U.S.C. § 602; 19 U.S.C. § 1595a(c)(2)(C); 19 C.F.R. §§ 133.31-133.37).
For details on the required disclosure of software code under the Copyright Act's registration deposit and mandatory deposit provisions and how software rights holders can minimize the amount of source code they must disclose to comply with these provisions' requirements, see Practice Note, Legal Protection of Software: Deposit Requirement and Software Publication and Mandatory Deposit.
General Scope of Copyright Protection
The owner of software copyrights enjoys exclusive rights of:
- Reproduction.
- Modification, adaptation and the preparation of other derivative works (for example, translations, bug fixes, new releases and new versions).
- Distribution, including by license, sale or rental (in electronic file or other form).
- Public display and performance of works generated by the software, including screen displays, graphics and other audio, visual and audiovisual content.
Each exclusive right stands on its own, allowing the copyright owner to retain certain rights while transferring or licensing others. For more information on licensing considerations, see Copyright License Checklist.
Limitations of Copyright Protection
Given software's relatively short economic life, the length of software copyright protection is rarely, if ever, a matter of concern (see Practice Note, Legal Protection of Software Comparison Chart: Forms of Software Protection (Duration)). However, software rights owners must carefully consider certain other limitations on copyright protection, including the right of the owner of a copy of a computer program to:
- Sell or otherwise dispose of that copy (other than by rental, lease, lending or similar transactions) (17 U.S.C. § 109(a) and (b)(1)(A)) (the first sale doctrine).
- Display that copy at the place where the copy is located (17 U.S.C. § 109(c)).
- Make or authorize the making of another copy or adaptation:
- for archival purposes;
- as an essential step in the use of the program; or
- to maintain or repair a device containing the program.
(17 U.S.C. § 117(a) and (c).) - Make fair use of the program by copying and reverse engineering its object code to uncover noncopyrightable methods and ideas to support interoperability or create new software products (17 U.S.C. § 107).
However, by careful crafting of their software distribution models and license agreements, software rights owners can contract around these limitations and acquire independently enforceable contract rights (see Practice Note, Legal Protection of Software: Contractual Protections).
For information on software copyright ownership, authorship and works made for hire and a comparison of the protections available to software rights owners under copyright, patent, trade secret and contract law (including under the Digital Millennium Copyright Act (DMCA)), see Practice Note, Legal Protection of Software.