Copyright Law protects against infringement or unauthorized use of computer programs by extending copyright protection for literary works to include a computer program’s source code. 1 Further, to assert one’s copyrights against an alleged infringer, Section 411(a) of the Copyright Act also requires a valid copyright registration covering the subject matter. 2 Without a valid registration, software copyright infringement cases are likely to be dismissed.
The composition of computer programs, when considered against this legal requirement, however become quite murky, raising such questions as:
- Which version of the software should be registered?
- Which source code files could be compiled to meet the requirements of the copyright deposit material?
- Whether a valid registration covers or does not cover subsequent versions or modifications to the source code of the registered version?
In this three-part series of blogs, we will explore these questions and certain considerations to account for in the registration application, based on our own understanding of the guidance material published by the Copyright Office and our collective experiences from working on software copyright matters.
Notwithstanding, this series is not intended to serve as legal advice, nor should it be substituted for advice from a licensed attorney; it is merely intended to explore some of the sensitive factual considerations that may be present for some applicants seeking to apply for copyright registration covering a computer program.
In this first article, we explore the first question noted above; namely, which version of the software should be registered? First, as a foundational concept, copyright registrations only cover new expressions created by the author or authors, and do not cover unclaimable material, such as previously published material, previously registered material, public domain material, or third-party material. 3
When considering a copyright registration for software, distinguishing between claimable and unclaimable material can be quite tricky. A source code examination may reflect an aggregation of new expression, third-party material, and public domain material, or any combination of the categories of claimable and unclaimable material.
Second, in practice, source code may be developed or written in different stages of a software development project’s life cycle, with some portions reaching completion and being released while others remain in progress or planned for later development.
Thus, the nature of software development when considered against the categories of unclaimable material has certain implications for making an appropriate distinction between claimable and unclaimable material when preparing an application for copyright registration for a particular version.
For instance, consider the following hypothetical: ABC, Inc. over the course of 5 years has developed a comprehensive software application for tracking and managing employee payroll and benefits, called “OneForAll.” While version 1.0 of the software application has been licensed to a small group of beta customers, the software has never been registered with the copyright office.
The current version licensed by the same small group of beta customers is version 3.1, which is composed of approximately 35% of source code written and developed for version 1.0, 63% newly-developed source code, which was developed to introduce additional functionality and fix reported errors in response to issues reported by its beta customers, and approximately 2% of the source code is contributed by third-party tools licensed by ABC, Inc. from other entities for use in their software application. ABC, Inc. wants to expand their customer base by releasing the application, but before doing so, their legal counsel has advised them to seek software copyright registration.
In this hypothetical, it is important to consider the extent to which the categories of unclaimable material may influence the version for which ABC, Inc. seeks registration. For example, the hypothetical above notes that 35% of the code for version 3.1 is the same code used in ABC’s version 1.0, which was the version initially licensed by ABC’s beta customers.
Since the Copyright Office guidance material indicates that “publication” includes the distribution of copies of a work to the public by sale or other transfer of ownership, lease, or lending, 4 ABC’s licensing of OneForAll v.1.0 to the beta customers may render this 35% of the code as having been “previously published. Consequently, ABC may need to register OneForAll v.3.1 it as a “derivative work” and exclude the source code from OneForAll v.1.0 from its registration. 5
Further, if ABC, Inc. sought to register OneForAll v.1.0, it likely will not adequately cover the 63% of new expressions embodied in v.3.1. 6 Depending on when ABC added the 2% of the code that is contributed by licensed third-party tools (i.e., whether in version 1.0, or sometime thereafter), it too may need to be excluded from the registration.
As indicated in the basic hypothetical above, understanding the composition of the source code for each version of software will likely be an important step to take prior to applying for copyright registration. As software’s source code composition may change from version to version, so too might the need for excluding certain portions of the source code from the application for registration, and those changes may alter the scope of claimed material.
This article and series are not intended to be a comprehensive guide to software copyright registrations. Much more comprehensive guidance is published by the Copyright Office in the form of the Compendium of U.S. Copyright Office Practices, Third Edition (available at: https://www.copyright.gov/comp3/docs/compendium.pdf). Additional guidance materials are available in the form of Copyright Circulars published by the Copyright Office (available at: https://www.copyright.gov/circs/).
DisputeSoft’s software experts have substantial experience in reviewing and analyzing computer source code in copyright infringement matters, and specifically have experience in matters where the scope of the copyright registration has had material influence on the outcome of the matter.
For more information on DisputeSoft’s copyright infringement experience, visit our services page, and browse the firm’s representative copyright infringement matters.
- Copyright Act of 1976, 17 U.S.C. §§101,102(a)(1) (1976); see also Apple Computer v. Franklin Computer Corp., 714 F.2d 1240, 1248 (3d Cir. 1983) (“Thus, a computer program, whether in object code or source code, is a ‘literary work’ and is protected from unauthorized copying, whether from its object or source code version.”). ↩︎
- Copyright Act of 1976, 17 U.S.C. §411(a) (1976). ↩︎
- Compendium of U.S. Copyright Office Practices, Third Edition, §503.5 ↩︎
- Compendium of U.S. Copyright Office Practices, Glossary, p. 15. ↩︎
- Compendium of U.S. Copyright Office Practices, §1509(1)(F)(2) (“If a computer program contains an appreciable amount of unclaimable material, the program should be registered as a derivative work.”)
↩︎ - See e.g., Airframe Systems v. L-3 Communications, 658 F.3d 100, 106 (1st Cir. 2011) (affirming a lower court decision to grant summary judgment in favor of L-3 because the evidence of copying presented was between L-3’s program, and an unregistered 2009 derivative of Airframe’s program, and not an earlier registered version).
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