Copyright Issues Related to Software and Websites

Practice Group Meeting

1-17-2013

Copyright: Protecting Expression• “Works of authorship fixed in a tangible medium of

expression”• Software

– What is protectable? Just the code?– How is it protected? Do I have to deposit my secret

code?– Is an algorithm “expressive” in some way? Or is it just a

method for doing something?– What about my APIs? Can I protect those?

• Internet/Websites:– What is protectable?– How is a page changing every day protected under rules

written for books that never change?– Digital explosion = lots of copying! What protection can I

get?– What about social media?

Software Copyright: Source Code

• Can register as literary work– Update registration with new versions– However: Copyright is an automatic right

Acquired upon fixation Do not need to register to hold a copyright However: MUST register to sue for infringement

Software Copyright: Source Code

• What if code contains trade secrets?• Options:

– Deposit only object code: Registration issues under “rule of doubt” = benefit of doubt being unable to verify copyrightable authorship

– Deposit sections of the source code blocked out

Software Copyright: Hiding Code• First 25 and last 25 pages of source code with

portions containing trade secrets blocked out, or• First 10 and last 10 pages of source code alone, with

no blocked out portions, or• First 25 and last 25 pages of object code plus any 10

or more consecutive pages of source code, with no blocked out portions, or

• For programs 50 pages or less in length, entire source code with trade secret portions blocked out

• However:– Blocked out portions must be proportionately less than

the material remaining; and– Visible portion must represent an appreciable amount of

original computer code.

Software Copyright: Substantial Similarity

• Deposit used in “substantial similarity” analysis

• Choose carefully: Deposit enough to prove infringement later without giving up the secret

• Example from trade secret world:– Obfuscate the images– Show enough to show substantial similarity– Hide enough to preserve the secret

• Must indicate by cover letter (software) or petition (trade secret)

Trade Secret Deposit Example: As Authored

Note: This is Fig. 14 from issued U.S. Patent 8,000,000

Trade Secret Deposit Example: As Filed

Note: This is Fig. 14 from issued U.S. Patent 8,000,000

Software Copyright: More than Source Code• Cannot copyright functional aspects• Possibly patentable as e.g. a process, system

and method for performing a process, etc.• Protection may be available for “structure,

sequence and organization”– Protection even if infringer wrote in another

language/platform– Things not necessary to the utilitarian function

might be considered protectable expression– E.g. file structures, screen outputs, data input

formats, flow/sequencing of screens.– Especially if there is more than one way to

achieve the same result.

Application Programming Interfaces?

• Oracle v. Google NDCA case says no copyright

• Google copied structure and names of 37 packages from Oracle’s Java API into the Android platform

• Key issue: Whether the API specification is protected, not the implementation

Example Java API and Method• API defines a library of method (function) calls:

public boolean java.lang.String.startsWith(String prefix, int

offset)

• Source code for a particular implementation of the method (function) determines how the computer behaves when the method is called:

public boolean startsWith(String prefix, int toffset) {char ta[] = value;int to = offset + toffset;char pa[] = prefix.value;

. . . .return false;

}}return true;

}

Software API’s: Judge’s Ruling

• Judge relied on these points of law:– If there is only one way to express it, then no

one can claim ownership by copyright (merger doctrine)

– Names and short phrases not copyrightable– No protection for ideas, procedures, systems,

methods of operation or concepts– Don’t get protection just because you worked

hard to produce it

Software APIs: Judge’s Ruling• Not Protected: Method specification defined in

the API = idea• Protected: Actual code in methods as

implemented by Oracle, Google, or anyone else = expression

• To be interoperable across platforms, the API must match exactly

• Only one way to express the idea of having a Java API

• Therefore API is not protected: Anyone can write their own implementation

• Appeals in progress. . .

Software Copyright: User Interfaces

• Copyright Office: Single registration can protect programs and related screen displays– Don’t need a separate registration for screen

displays– Don’t need a specific reference to them in the

application– Includes video games!

• NOT true for websites! More later. . .• Courts: Set of UI operations alone not

copyrightable– Must indicate specific infringing elements

Software Copyright Ownership

• First sale doctrine: Owners of copies have the right to resell their copy . . .

• Software copies are rarely “sold”• Software copies are “licensed” for use• Additional copies may be made

– For archival purposes “as an essential step in the utilization of the computer program”

– For maintenance purposes• Fair use: Some copying/distribution of

protected elements may be allowed – but fact sensitive!

Open Source and “Copyleft”

• Copyright law not just a constraint on copying• Protects right to maintain free distribution• Sometimes referred to as “Copyleft” licensing• Best example: GNU General Public License• Common in Open Source Software Projects• Various Permutations: You can copy and

distribute as long as you allow others to.

Websites: Special Kind of Software+

• Similar protectable elements: text, images, audio files, movies (including any sounds).

• Unique problems:– Digital = Easy to copy/distribute– Web = Must copy to distribute and very fast!– Users/Consumers = Billions in blink of an eye– Providers = Who has rights?– Registering = Web sites change . . .

Website Protection

• Registration:– As with any other copyright, registration is not

required to retain rights.– Is required to sue for infringement– Website source code like other software

protected as a literary work and can be registered

• Marking:– Websites commonly marked with a copyright

notice– Mark source as well

Website Registration• Can register the HTML, CSS, Javascript, and other

source code like any other literary work.• Appearance: Registering only the code is not

enough! (Not like other software)– Registering code (like HTML) that formats text and

graphics on the screen when a website is viewed does not cover the appearance of the generated page.

– Registration must include any website content generated by the program source

– Not included in the submitted material received or not referred to in the application = not registered!

– Must reregister page renditions if they change.(!)

From Books to Bytes: Not just Software

• Digital content + WWW = Easy distribution• LOTS of copying, some necessary: Routers,

firewalls, ISPs, search engines, etc.• DMCA limits liability of online service

providers relating to:– Transitory digital network communications– System caching– Information residing on systems or networks at

user direction– Search engines

What Providers Must Do

• Adopt policies for terminating accounts of repeat infringers

• Agree to remove or block access to content upon receiving notice of alleged infringement from the copyright owner

• Make these policies publicly available• Provide contact information on the website

and to the copyright office for a designated agent to handle these matters

What Copyright Holders Must Do

• Monitor websites for infringing content and report it to the designated agent for takedown

• This presents a few challenges:– 48 hours of video are uploaded to YouTube

every minute. . .– About 185,000,000 active websites in the world

today . . .– About 630,000,000 hostnames . . .– No international copyright law: Removing

infringing material from a foreign server can be hard

Social Media (Lite)

• Terms and Conditions:– You get to post content– Host often takes a nonexclusive license in

anything posted: Best not to create poetry on your friend’s blog. . .

– Has right to filter/block access/take down infringing material

• Tests the limits of fair use:– E.g. Playing music in the background of an

online home movie not fair use– Like to share: Not just sharing with friends! It’s a

a very big world!