Copyright

[susieq]

If you copywright software, you have to send in part of your code. How do you keep this from being in the public archives. Is there a better way to copywrite software, or is liscensing better. Could you please tell me the difference in copywright and liscensing? Any information you could give would be helpful.

 

[ALawyer]

You can both treat it as a trade secret and still have a copyright in it. You enjoy a copyright automaticallyon creation, even if you don't file witht he Copyright office, although you can't sue for copyright infringement until you file.

 

[I AM ALWAYS LIABLE]

Under the Federal Copyright Act of 1976 [17 USC §§101 et seq.] a federal system of copyright protection was established that abolished the distinction between state common law copyright protection for unpublished work and federal protection for published work. Now, all state rights that may be equivalent to any of the exclusive rights within the federal copyright laws are preempted and governed exclusively by the federal law. [17 USC §301(a)]

An author’s work is protected by federal copyright law as soon as it is created and fixed in a tangible medium of expression from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. [17 USC §102(a)] A work is fixed in a tangible medium of expression when it takes on the physical aspects of the protected work, so that the "copy" of that work may be perceived by an observer. [Walker v University Books, Inc. (1979, CA9 Cal) 602 F2d 859; but see Kodadek v. MTV Networks, Inc. (9th Cir. 1998) 152 F.3d 1209 (reconstructions of cartoon character drawings made two years after the originals, were not "copies" for copyright registration purposes)] Note, too, that despite the celestial origins of a work believed to be divine revelation, the work was copyrightable if it was compiled, selected, and arranged with the input of human creativity. [Urantia Foundation v. Maaherra (9th Cir. 1997) 114 F.3d 955 (copyright dispute between parties who believed the copyrighted work, the Urantia Book, was authored by celestial beings and transcribed, compiled, and collected by mere mortals); Hunt v. Pasternack (9th Cir. 1999) 179 F.3d 683 (a valid copyright can exist in the architectural design of a building not yet constructed); Leicester v. Warner Brothers et al., 232 F.3d 1212, 57 U.S.P.Q.2d 1001 (2000, CA9 Cal) (Since §102(a)(8) affords limited copyright protection to architectural works, wall and towers that are part of the building’s architecture may be used by movie studio in filming without violating artist’s copyright); CDN Inc. v. Kapes (9th Cir. 1999) 197 F.3d 1256 (wholesaler’s price lists of collectible coins had enough creativity and originality to make them copyrightable)]

The application of copyright laws to computers and their software poses special problems. For example, intermediate copying in reverse engineering to create software that emulates Sony’s PlayStation may be protected "fair use" and not copyright infringement when the copying was necessary to gain access to the functional elements of the software. [Sony Computer Entertainment, Inc. v. Connectix Corp. (9th Cir. 2000) 203 F.3d 596] Similarly, the unauthorized use of a video game "screen shot" in advertising for a software emulator for the PlayStation may be "fair use" under 17 USC §107 because they are an insignificant part of the copyrighted whole and their use in advertising provides a public benefit. [Sony Computer Entertainment America, Inc. v. Bleem, LLC (9th Cir. 2000) 214 F.3d 1022 (citing Connectix, supra)]

Subject matter of federal copyright law

Works of authorship that are protected by federal copyright include the following [17 USC §102(a)]:
(1). Literary works;
(2). Musical works;
(3). Dramatic works;
(4). Pantomimes and choreographic works;
(5). Pictorial, graphic, and sculptural works;
(6). Motion pictures and other audiovisual works;
(7). Sound recordings; and
(8). Architectural works.

The subject matter of copyright includes compilations and derivative works, and extends only to the material contributed by the author to the work, as distinguished from the preexisting material employed in the work. [17 USC §103]

While the federal government may not copyright its own laws and public data, the same prohibition does not generally apply to state and local governments. [See, for example, Practice Management Information Corp. v. American Medical Ass’n (9th Cir. 1997) 121 F.3d 516; but see State of Ga., on Behalf of and for Benefit of General Assembly of Ga., By and Through Code Revision Com’n v. Harrison Co. (N.D. Ga. 1982) 548 F.Supp. 110]

Type of federal copyright protection

The owner of a copyright is granted certain exclusive rights, including the rights to reproduce the work; to prepare derivative works; to distribute copies to the public by sale or lease; and to publicly perform or display the work. [17 USC §106; Micro Star v. Formgen Inc. (9th Cir. 1998) 154 F.3d 1107 (computer files that contain description of audio visual displays of popular computer game are protected under copyright laws as derivative works)] Violation of a copyright owner’s exclusive rights constitutes infringement, for which the owner may obtain legal and equitable relief. [17 USC §§501 et seq.] Contributory infringement is also actionable. [Religious Technology Center v. Netcom On-Line Communication Services, Inc. (N.D. Cal. 1995) 907 F.Supp. 1361 (claim for contributory copyright infringement against an Internet service provider based on activities of its customer allowed to proceed)]

Damages are recoverable for international distribution of copyrighted material if the infringement occurred in the United States. [Los Angeles News Service v. Reuters Television Intern., Ltd. (9th Cir. 1998) 149 F.3d 987 (copyrighted news footage of the Los Angeles riots after the Rodney King case verdict); Columbia Pictures Industries, Inc. v. Miramax Films Corp. (C.D. Cal. 1998) 11 F.Supp.2d 1179 (injunction appropriate if there is a reasonable expectation that the wrong will be repeated, even if it has voluntarily ceased)]

No protection for ideas

In no case does copyright protection extend to 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. [17 USC §102(b)] Copyright protection extends only to the expression of an idea or theme, not to the idea or theme itself. [Midas Productions, Inc. v Baer (1977, CD Cal) 437 F Supp 1388; see also Allen v. Academic Games League of Am. (1996, CA9 Cal) 89 F.3d 614]]

State statutory copyright protection

Former CC §§980 et seq., which recognized the common law right of the owner of a composition to exclusively possess it, use it, and transfer or otherwise dispose of it, was repealed. [Witkin, 4 Summary of California L., Personal Property §36 (9th ed.)] Current law provides that the author of any original work of authorship not fixed in any tangible medium of expression has exclusive ownership in the representation or expression of the work, except against one who originally and independently created the same or a similar work. A work is considered not fixed when it is not embodied in a tangible medium of expression, or when its embodiment in the tangible medium is not sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration, either directly or with the aid of a machine or device. [CC §980(a)(1)]

In addition, under CC §980(a)(2) an author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has exclusive ownership of the work until February 15, 2047. This ownership is in relation to all persons except one who independently makes or duplicates another sound recording that does not recapture the actual sounds fixed in the prior sound recording, but consists of an independent fixation of other sounds. [Self-Realization Fellowship Church v. Ananda Church of Self-Realization (9th Cir. 2000) 206 F.3d 1322 (common law copyright in sound recordings enforceable under California law) (citing Klekas, supra)] A person making such a recording is excepted even though the sounds imitate or simulate the sounds of the prior recording. Finally, the inventor or proprietor of any invention or design, with or without delineation or other graphical representation, has an exclusive ownership in the invention or design, and in the representation or expression of it. That ownership continues so long as the invention or design and the representations or expressions of it made by the inventor or proprietor remain in her or his possession. [CC §980(b)]

Unless otherwise agreed, an original work of authorship not fixed in any tangible medium of expression, and in the creation of which several persons are jointly concerned, is owned by them in equal proportion. [CC §981(a)] Unless otherwise agreed, an invention or design in the production of which several persons are jointly concerned is owned by them in equal proportions, if the invention or design is single, and in proportion to the contribution of each, if it is not single. [CC §981(b)]
If the owner of any invention or design intentionally makes it public, a copy or reproduction may be made public by any person, without responsibility to the owner, so far as California law is concerned. [CC §983]

State copyright protection of ideas

An abstract idea, method, or plan is not copyrightable, and is not regarded as literary property capable of exclusive ownership. This was made clear in California by the 1947 amendment of CC §980, eliminating the former reference to "any product of the mind," and protecting only the representation or expression of a composition. Neither the 1976 Federal Copyright Act nor the 1982 amendment to CC §980 change the rule denying protection to abstract ideas. [Witkin, 4 Summary of California L., Personal Property §47 (9th ed.)]

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[I AM ALWAYS LIABLE]

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Overview

Federal law effectively preempts virtually all state copyright protection of literary property. Moreover, because an abstract idea is not the subject of ownership, its protection cannot be found in property doctrines. However, even though ideas are not property, they still have value for the person who conceives of them. [Desny v Wilder (1956) 46 Cal 2d 715, 299 P2d 257] Common sense and public policy prescribe that disclosure of an idea should be protected to allow the sale of the idea. [Rokos v Peck (1986, 2nd Dist) 182 Cal App 3d 604, 227 Cal Rptr 480]
Several different legal theories have arisen to protect ideas and literary property from inappropriate use by a person to whom they are disclosed. These theories apply where elements of the cause of action are different from those required for copyright protection. [Balboa Ins. Co. v Trans Global Equities (1990, 3rd Dist) 218 Cal App 3d 1327, 267 Cal Rptr 787] The primary theories are the following:
(1). Breach of contract;
(2). A tort action for breach of confidence;
(3). A tort action for conversion or misappropriation.
Similar principles apply to ideas useful in business.

Contractual protection

Although an idea is not property subject to exclusive ownership protectable under copyright law, it may be subject to protection by contract. The disclosure of an idea may be of substantial benefit to the person to whom it is disclosed, and the disclosure may, therefore, be consideration for a promise to pay. [Rokos v Peck (1986, 2nd Dist) 182 Cal App 3d 604, 227 Cal Rptr 480] It is common practice in the motion picture, radio, and television industries to conceive and submit ideas for sale before developing a concrete literary composition. The modern view is that the idea, though not property, has value, and may be the consideration for an express or implied-in-fact contract.
A contract is either express or implied. [CC §1619] An express contract is one with terms stated in words. [CC §1620] In contrast, the existence and terms of an implied contract are manifested by conduct. [CC §1621] Generally, implied-in-fact contract terms stand on equal footing with express terms. [Foley v Interactive Data Corp. (1988) 47 Cal 3d 654, 254 Cal Rptr 211, 765 P2d 373] The true implied contract consists of obligations arising from a mutual agreement and intent to promise where the agreement and promise have not been expressed in words. [Witkin, 1 Summary of California L., Contracts §11 (9th ed.)]
If the idea purveyor has clearly conditioned the offer to convey the idea upon an obligation to pay if the idea is used by the offeree, and the offeree, knowing the condition before he or she knows the idea, voluntarily accepts its disclosure, finds it valuable, and uses it, there will either be an enforceable express promise to pay, or the law will hold that the parties have made an implied-in-fact contract. [Desny v Wilder (1956) 46 Cal 2d 715, 299 P2d 257] Even though the idea may be common or open to public knowledge, its disclosure may be sufficient consideration for the promise to pay. [Chandler v Roach (1957, 2nd Dist) 156 Cal App 2d 435, 319 P2d 776] An idea that is widely known and generally understood may still be protected by an express contract providing that it will be paid for regardless of its lack of novelty. [Faris v Enberg (1979, 2nd Dist) 97 Cal App 3d 309, 158 Cal Rptr 704]

Unlike a copyright, a contract not to disclose an idea without payment is effective only between the contracting parties; it does not withdraw the idea from general circulation. Any person not a party to the contract is free to use the idea without restriction. [Rokos v Peck (1986, 2nd Dist) 182 Cal App 3d 604, 227 Cal Rptr 480]

Nondivisible assignability of ideas under state law

An idea, unlike other property entitled to copyright protection, cannot be segmented into varying rights and independently assigned. Although California employs the implied-in-fact contract device to protect persons who, in attempting to market their ideas, must disclose them to producers and publishers, the device does not invest ideas with the attendant divisible assignability of those rights. Thus, although an action for breach of an implied-in-fact contract may be assigned, an assignment of the right to produce a script does not include the right to share in the claim for breach of an implied-in-fact contract that arose prior to the assignment. Also, because federal copyright statutes protect owners of literary and artistic property rights who seek to assign or divide those rights, allowing the assignee of the right to produce to share in the claim for breach of an implied-in-fact contract would be tantamount to affording state copyright protection coextensive with that afforded by federal law. [Rokos v Peck (1986, 2nd Dist) 182 Cal App 3d 604, 227 Cal Rptr 480]

IAAL