Copyright Issues Related to Software and Websites Practice

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

Trade Secret Deposit Example: As Filed Note: This is Fig. 14 from issued U. S. Patent 8, 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. starts. With(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 starts. With(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 You. Tube every minute. . . – About 185, 000 active websites in the world today. . . – About 630, 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!