by Thomas M. Krischan
So, you've just written the successor to PAC-MAN and you want to protect your investment from the software pirates! Copyrighting it is a good initial step but there are some things you'll need to know. First of all, what exactly is a copyright? A copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to authors. Specifically, it protects "original works of authorship" including computer programs. This protection is available to both published and unpublished works. The owner of the copyright has the exclusive right to do and to authorize others to do reproductions, prepare derivative works, distribute copies and display the copyrighted work publicly (section 106 of the Copyright Act). It is illegal for anyone to violate any of these rights. These rights, however, are limited to your particular literary or pictorial form of expression and nothing more. You do not own the exclusive right to any idea, method or system mentioned in your expression. My favorite example involves a mountain climber who successfully ascends to the summit of Mt. Everest. Upon reaching the top the climber unpacks his camera and snaps a picture of the sun as it sets behind an adjacent mountain. The climber owns exclusive rights to that picture, but not to all pictures of sunsets. In fact, if other climbers stood shoulder to shoulder with him on that mountain and took their own pictures, then each would own exclusive rights to their very own picture, even though all of the pictures are similar, perhaps identical, with each other. Copyright protection also excludes scientific or technical methods or discoveries, business operations or procedures, mathematical principles, formulas or any other sort of concept, process or method of operation (Circular 31). Inventions are subject matter for patents, not copyrights.
An expression is a description, explanation or illustration of an idea or system. Again, you cannot copyright an idea. But you can copyright a description of an idea, because it's your literary expression. It becomes obvious that proper wording in the copyright application is essential. Even the experts have difficulty in interpreting the fine points of copyright taw and consequently its infringement. This is especially true of computer programs. For example, Apple Computer (May 1982) filed suit against Franklin Computer claiming that proprietary software designs were being infringed upon against copyright law. They also filed suit that proprietary components were being infringed upon, violating patent Iaw. Franklin announced that they were a major antitrust counterclaim. Both parties decided to let the courts make the final judgement.
On July 30, 1982, U.S. District Judge Clarence C. Newcomer held that Apple was not entitled to preliminary injunction against Franklin's sales. Score: Franklin 1, Apple nothing. Apple had applied for and obtained copyright registration for each of its programs involved in the suit. The judge, however was not convinced that an operating-system program in object code can be protected under the copyright law. Apple's claim for copyright protection was based on these arguments:
Franklin argued that they wanted to be compatible with Apple, so that they could use independently produced software and hardware from third parties. Confused? You're not alone. Judge Newcomer wrote that "there is no clear consensus on how to describe the technology employed in microcomputers." The final word has yet to be said in this continuing legal battle. But, this is for certain, if ROM and floppy diskettes are are found to be mechanical devices then they lose the protection reserved for writings and expressions under copyright.
In another case, Magnavox filed suit against Mattel Electronics claiming that proprietary patents been infringed upon. On July 22, 1982, U.S. District Judge George Leighton held that Magnavox was entitled to an injunction against Mattel's sales. The decision forbids Mattel from manufacturing, selling or even using six popular video games. These games are Football, Tennis, Basketball, Hockey, Soccer and Baseball. My mind can't help but flash back to the TV commercial of George Plimpton standing in the snowy bleachers comparing video football games and hearing him say, "...kind of leaves you out standing in the cold." Score: Magnavox 1, Mattel nothing. As any good lawyer would do, Mattel filed and won a motion to stay the injunction with a second judge. The patent infringement allegedly refers to the rebound action of a ball-type object.
In yet another case, Astrocade filed suit against ATARI and Commodore claiming that licensed patents had been infringed upon. The patents are held by Bally, who refused to join the suit. Unfortunately, Astrocade did not request a preliminary injunction, so there's no score yet.
United States Copyright lawsuits are not confined to the United States. The U.S. holds copyright protection treaties with most countries, with the notable exception of Taiwan. Consequently, bootlegged materials are often shipped from Taiwan and seized in Hong Kong, New Zealand or some other country that does enforce the international law.
These lawsuits demonstrate that ownership of a copyright or patent is not necessarily total protection. Possession helps, but you can still be sued and you could even lose. Sometimes the suit may never appear in court, since the very threat of litigation and seizure of a product is often sufficient. Case in point- Visicorp hired a legal firm to confront certain advertisers who used their trademark prefix "visi" in their product name (Gee, I wonder what Citicorp thinks about the name Visicorp). As a result, most of the advertisers mended their ways and decided not to fight. The ultimate responsibility for enforcement against infringement belongs with you. The Copyright Office does not compare deposit copies or check registration records to determine whether works submitted for registration are similar to any work already copyrighted. They just document the registration of the work, assign it a number and deposit a copy for reference purposes.
The way in which copyright protection is secured is frequently misunderstood. The copyright is secured automatically when the work in created. A work is created when it is fixed to a visually perceived device such as books, manuscripts, videotape or microfilm. Registration in the Copyright Office and publication of the work are not required. There are, however, definite advantages to registration and several consequences to publication. Registration establishes a public record of the copyright claim, allows for infringement suits to be filed in court and will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate. When a work is published, all published copies should bear a notice of copyright, the year of publication and the name of the owner of the copyright. Failure to comply with the notice requirement can result in the loss of certain rights, such as the right to recover attorney's fees and statutory damages. The published works are subject to mandatory deposit with the Library of Congress. But here again, there is confusion on what publication means. The Copyright Act defines publication as the distribution of copies, but not their performance or display alone. Therefore, a performance on television does not constitute a publication, but the same performance in a theater or over cable television does. Does a turn on a PACMAN arcade machine constitute a publication or merely a performance? Publication requires the transfer of ownership and the unrestricted disclosure of its contents. What exactly does that quarter buy? No one is quite sure!
If you choose to register your program, send the Copyright Office a completed application (Form TX), $10.00 and two copies of your source code and manual. Here is an exclusive inside tip. Starting in September, 1982, you will be able to protect your visual displays by including two color photographs of every significant illustration. Significant illustration means detailed graphics like Mattel's baseball diamond or ATARI's PAC-MAN grid but not text modes or simple graphics patterns. You can request that forms be mailed to you by telephoning (202) 287-9100 and leaving a message on their recording machine or by sending a letter to the Register of Copyrights, Library of Congress, Washington, D.C. 20559. The Copyright Office is not permitted to give legal advice. If you need information on ownership disputes, infringement suits, publishing, royalty payments or the like, you will be told to consult an attorney.
Once you receive your application form, read the instructions, get a typewriter and reread this next part of the article. We will go through and fill out an application step by step. I am assuming the most simplified case of a lone author and their totally original program.
SPACE 1: TITLE. Your work must have a title. It does not have to be original or lengthy. Leave the rest blank.
SPACE 2: AUTHOR. Enter your name, your nationality and check NO for these three questions: "Was this author's contribution to the work a'work made for hire'?", "Was this author's contribution to the work anonymous?", "Pseudonymous?". Enter under AUTHOR OF: "Text of computer program and description". Do not use the words: idea, method, system, develop, procedure, or principle. Words which imply expression are: description, explanation or illustration. Leave the rest blank.
SPACE 3: CREATION. Enter the appropriate year and. leave the rest blank. The copyright is enforced for your lifetime plus fifty years.
SPACE 4: CLAIMANT. Enter your name, address and leave the rest blank.
SPACE 5: PREVIOUS. Check NO for the question: "Has registration for this work, or for an earlier version of this work, already been made in the Copyright Office?". Leave the rest blank.
SPACE 6: COMPILATION. Leave blank.
SPACE 7: MANUFACTURING. Leave blank unless you have signed a royalty agreement with someone. If you have, enter their name and address.
SPACE 8: REPRODUCTION. Check "a" for copies and phonorecords.
SPACE 9: CORRESPONDENCE. Enter your name and address under "CORRESPONDENCE" and leave the rest blank.
SPACE 10: CERTIFICATION. Check "author", enter your name, date and sign by the (X).
SPACE 11: ADDRESS. Enter your name and address.
If you have followed my instructions, you should have entered your name 5 times; your address 3 times; the date (or at least year) 2 times; title, brief statement, nationality and signature 1 time each and 6 check marks. If you did this exactly as I told, you to and you mail all of the items discussed earlier, the Copyright office will send back a copy of the form. The copy should arrive within 8 to 12 weeks with a certification stamp, a registration number and a date. If you did something incorrectly, they will send you back your application with a new application form, a letter of explanation with a control number and a three month grace period to reapply or you forfeit your $10.00 and two copies. Don't feel bad if you get your application returned to you. I have obtained many copyrights but only once on the first try. I forgot to sign the application, or used a "bad" word. Often, they only wanted verification that I meant what I said, "Are you sure this is entirely your own work?". Many programs are written from scratch but some are compilations of other programs; data bases, operating systems, and the like. Be sure to give the proper credit to other works if you did incorporate them into your work. However, a program in BASIC or Assembler does not cite that language under "PREEXISTING MATERIAL". Language is considered an idea or system.
Copyright is not is not the only method of protection. There are also patents and trademarks, but their application forms are much more detailed and expensive. Beyond the legal aspects, there are also hardware and software techniques of protection. Diskettes and ROM's can be made uncopyable by their hardware dependence. Source and object codes can be made unreadable by encrypting them in any of various manners. But for ten bucks, copyrights are hard to beat.
(Editor's note: a recent court decision ruled in favor of Franklin. The courts ruled that since the operating system of the Apple was in the public domain, computers emulating it were not an infringement of Apple's rights.)