
                             COPYRIGHT LAW
 

I am an attorney practicing copyright law and computer law.  I read a
series of queries in Net.Legal about copyright law and was dismayed to find
that people who had no idea what they were talking about were spreading
misinformation over the network.  Considering that the penalties for
copyright infringement can include $50,000.00 damages per infringed work,
attorneys' fees, court costs, criminal fines and imprisonment, and
considering that ignorance is no excuse and innocent intent is not even a
recognized defense, I cringe to see the network used as a soapbox for the
ill-informed.  For that reason, this article will discuss copyright law and
license law as they pertain to computer software.

My goal is to enable readers to determine when they should be concerned
about infringing and when they can relax about it.  I also want to let
programmers know how to obtain copyright for their work.  I'll explain the
purpose of software licenses, and discuss the effect that the license has
on copyright.  For those of you who are programmers, I'll help you decide
whether you own the programs you write on the job or your boss owns them.
I will also mention trademark law and patent law briefly, in order to
clarify some confusion about which is which.  Incidentally, if you read
this entire essay, you will be able to determine whether or not the essay
is copyrighted and whether or not you can make a printout of it.

This is a long article, and you may not want to read all of it.  Here is an
outline to help you decide what to read and what to ignore:

 

PART ONE:  THE MEANING OF COPYRIGHT FROM THE VIEWPOINT OF THE SOFTWARE USER

        0.1   A bit of history
        0.2   The meaning of "copyright"
        0.3   The meaning of "public domain"
        0.4   A hypothetical software purchase
        0.5 - 0.6  Can you use copyrighted software?
        0.7   Can you make a backup copy?
        0.8   Licenses may change the rules
        0.9   Can you modify the program?
        0.10  Can you break the copy protection scheme?
        0.11  Summary

 

PART TWO:  COPYRIGHT SOUNDS NEAT -- HOW DO I GET ONE?
           OR, HOW DO I KNOW IF THIS PROGRAM IS COPYRIGHTED?

        0.12.1   How do you get a copyright?
        0.12.2   How do you lose a copyright?
        0.12.3   How do you waste a stamp?
        0.12.4   Do you have to register?
        0.13   How copyright comes into existence
        0.14 - 0.17  The copyright notice
        0.18   Advantages of registration
        0.19   A test to see if you understand this article

 

PART THREE:  WHO OWNS THE PROGRAM YOU WROTE?

        0.20   Introduction
        0.21 - 0.22  Programs written as an employee
        0.23 - 0.25  Programs written as a contractor

 

PART FOUR:  A BRIEF WORD ABOUT LICENSES

        0.26   Why a license?
        0.27   Is it valid?

 

PART FIVE:  I HAVE A NEAT IDEA.  CAN I TRADEMARK IT? WHAT ABOUT A PATENT?

        0.28   Trademark law explained
        0.29   Patent law
        0.39   CONCLUSION:  Where to find me for more info.

 

 

PART ONE:  THE MEANING OF COPYRIGHT FROM THE VIEWPOINT OF THE SOFTWARE USER

 

    0.1  If you're not interested in history, you can skip this paragraph.
"Modern" copyright law first came into existence in 1570,  by an act of
Parliament called the Statute of Anne.  Like most laws, it hasn't changed
much since.  It was written with books and pictures in mind.  Parliament,
lacking the foresight to predict the success of the Intel and IBM
corporations, failed to consider the issue of copyrighting computer
programs.  At first, courts questioned whether programs could be
copyrighted at all.  The problem was that judges couldn't read the programs
and they figured the Copyright Law was only meant to apply to things humans
(which arguably includes judges) could read without the aid of a machine.
I saw some mythical discussion about that in some of the net.legal drivel.
Let's lay that to rest:  programs are copyrightable as long as there is
even a minimal amount of creativity.  The issue was laid to rest with the
Software Act of 1980.  That Act modified the Copyright Act (which is a
Federal law by the way), in such a way as to make it clear that programs
are copyrightable.  The few exceptions to this rule will rarely concern
anyone.  The next question to arise was whether a program was copyrightable
if it was stored in ROM rather than on paper.   The decision in the Apple
v. Franklin case laid that to rest:  it is.

 

    0.2  Now, what is copyright?  As it is commonly understood, it is the
right to make copies of something -- or to put it the other way around, it
is the right to prohibit other people from making copies.  This is known as
an exclusive right -- the exclusive right to "reproduce," in the biological
language of the Copyright Act -- and what most people don't know is that
copyright involves not one, not two, but five exclusive rights.  These are
(1) the exclusive right to make copies, (2) the exclusive right to
distribute copies to the public, (3) the exclusive right to prepare
"derivative works" (I'll explain, just keep reading), (4) the exclusive
right to perform the work in public (this mainly applies to plays, dances
and the like, but it could apply to software), and (5) the exclusive right
to display the work in public (such as showing a film).

 

    0.3  Before we go any further, what is public domain?  I saw some
discussion on the net about public domain software being copyrighted.
Nonsense.  The phrase "public domain," when used correctly, means the
absence of copyright protection.  It means you can copy public domain
software to your heart's content.  It means that the author has none of the
exclusive rights listed above.  If someone uses the phrase "public domain"
to refer to "freeware" (software which is copyrighted but is distributed
without advance payment but with a request for a donation), he or she is
using the term incorrectly.  Public domain means no copyright -- no
exclusive rights.

 

    0.4  Let's look at those exclusive rights from the viewpoint of someone
who has legitimately purchased a single copy of a copyrighted computer
program.  For the moment, we'll have to ignore the fact that the program is
supposedly licensed, because the license changes things.  I'll explain that
later.  For now, assume you went to Fred's Diner and Software Mart and
bought a dozen eggs, cat food and a word processing program.  And for now,
assume the program is copyrighted.

 

    0.5  What can you do with this copyrighted software?  Let's start with
the obvious:  can you use it on your powerful Timex PC?  Is this a joke?
No.  Prior to 1980, my answer might have been No, you can't use it!
And people actually pay me for advice like that!  Well, think:  you take
the program into RAM.  What have you just done?  You've made a copy in RAM
-- in legalese, you've reproduced the work, in violation of the copyright
owner's exclusive right to reproduce.  (I better clarify something here:
the copyright owner is the person or company whose name appears in the
copyright notice on the box, or the disk or the first screen or wherever.
It may be the person who wrote the program, or it may be his boss, or it
may be a publishing company that bought the rights to the program.  But in
any case, it's not you.  When you buy a copy of the program, you do not
become the copyright owner.  You just own one copy.)

 

    0.6  Anyway, loading the program into RAM means making a copy.  The
Software Act of 1980 addressed this absurdity by allowing you to make a
copy if the copy "is created as an essential step in the utilization of the
computer program in conjunction with a machine and ... is used in no
other manner ... ."  By the way, somebody tell me what "a machine" means.
If you connect 5 PC's on a network is that "a machine" or several machines?
A related question is whether or not running software on a network
constitutes a performance.  The copyright owner has the exclusive right to
do that, remember?

 

    0.7  OK, so you bought this copyrighted program and you loaded it into
RAM or onto a hard disk without the FBI knocking on your door.  Now can you
make a backup copy?  YES.  The Software Act also provided that you can make
a backup copy, provided that it "is for archival purposes only ... ."  What
you cannot do, however, is give the archive copy to your friend so that you
and your pal both got the program for the price of one.  That violates the
copyright owner's exclusive right to distribute copies to the public.  Get
it?  You can, on the other hand, give both your original and backup to your
friend -- or sell it to him, or lend it to him, as long as you don't retain
a copy of the program you are selling.  Although the copyright owner has
the exclusive right to distribute (sell) copies of the program, that right
only applies to the first sale of any particular copy.  By analogy, if you
buy a copyrighted book, you are free to sell your book to a friend.  The
copyright owner does not have the right to control resales.

 

    0.8  At this point, let me remind you that we have assumed that the
program you got at the store was sold to you, not licensed to you.
Licenses may change the rules.

 

    0.9  Now, you're a clever programmer, and you know the program could
run faster with some modifications.  You could also add graphics and an
interactive mode and lots of other stuff.  What does copyright law say
about your plans?  Well... several different things, actually.  First,
recall that the copyright owner has the exclusive right to make derivative
works.  A derivative work is a work based on one or more preexisting works.
It's easy to recognize derivative works when you think about music or
books.  If a book is copyrighted, derivative works could include a
screenplay, an abridged edition, or a translation into another language.
Derivative works of songs might be new arrangements (like the jazz version
of Love Potion Number 9), a movie soundtrack, or a written transcription,
or a "long version," (such as the fifteen minute version of "Wipe Out" with
an extended drum solo for dance parties).  In my opinion, you are making a
derivative work when you take the store-bought word processor and modify it
to perform differently.  The same would be true if you "translated" a COBOL
program into BASIC.  Those are copyright infringements -- you've horned in
on the copyright owner's exclusive right to make derivative works.  There
is, however, some breathing room.  The Software Act generously allows you
to "adapt" the code if the adaptation "is created as an essential step in
the utilization of the computer program in conjunction with a machine ..."
For example, you might have to modify the code to make it compatible with
your machine.

 

    0.10  Moving right along, let's assume your store-bought program is
copy protected, and you'd really like to make a backup copy.  You know this
nine-year-old whiz who can crack any copy-protection scheme faster than you
can rearrange a Rubix cube.  Is there a copyright violation if he succeeds?
There's room to argue here.  When you try to figure out if something is an
infringement, ask yourself, what exclusive right am I violating?  In this
case, not the right to make copies, and not the right to distribute copies.
Public performance and display have no relevance.  So the key question is
whether you are making a "derivative work."  My answer to that question is,
"I doubt it."  On the other hand, I also doubt that breaking the protection
scheme was "an essential step" in using the program in conjunction with a
machine.  It might be a "fair use," but that will have to wait for another
article.  Anyone interested in stretching the limits of the "fair use"
defense should read the Sony "Betamax" case.

 

    0.11 Let me summarize.  Copyright means the copyright owner has the
exclusive right to do certain things.  Copyright infringement means you did
one of those exclusive things (unless you did it within the limits of the
Software Act, i.e., as an essential step...).

 

    0.12  PART TWO:  COPYRIGHT SOUNDS NEAT -- HOW DO I GET ONE?  OR, HOW DO
                     I KNOW IF THIS PROGRAM IS COPYRIGHTED?

 

         0.12.1  If you've written an original program, what do you have to
do to get a copyright?  Nothing.  You already have one.

 

         0.12.2  If you've written an original program, what do you have to
do to lose your copyright protection?  Give copies away without the
copyright notice.

 

         0.12.3  If you mail the program to yourself in a sealed envelope,
what have you accomplished? You've wasted a stamp and an envelope and
burdened the postal system unnecessarily.

 

         0.12.4  Do you have to register your program with the U.S.
Copyright Office?  No, but it's a damn good idea.

 

    0.13  Copyright protection (meaning the five exclusive rights) comes
into existence the moment you "fix" your program in a "tangible medium."
That means write it down, or store it on a floppy disk, or do something
similar.  Registration is optional.  The one thing you must do, however, is
protect your copyright by including a copyright notice on every copy of
every program you sell, give away, lend out, etc.  If you don't, someone
who happens across your program with no notice on it can safely assume that
it is in the public domain (unless he actually knows that it is not).

 

    0.14  The copyright notice has three parts.  The first can be either a
c with a circle around it, or the word "copyright" or the abbreviation
"Copr."   The c with a circle around it is preferable, because it is
recognized around the world; the others are not.  That's incredibly
important.  Countries around the world have agreed to recognize and uphold
each others' copyrights, but this world-wide protection requires the use of
the c in a circle.  On disk labels and program packaging, use the encircled
c.  Unfortunately, computers don't draw small circles well, so programmers
have resorted to a c in parentheses: (c).  Too bad.  That has no legal
meaning.  When you put your notice in the code and on the screen, use
"Copyright" or "Copr." if you can't make a circle.

 

    0.15  The second part of the notice is the "year of first publication
of the work."  "Publication" doesn't mean distribution by Osborne
Publishing Co.  It means distribution of copies of the program to the
public "by sale or other transfer of ownership, or by rental, lease, or
lending."  So when you start handing out or selling copies of your precious
code, you are publishing.  Publication also takes place when you merely
OFFER to distribute copies to a group for further distribution.  Your
notice must include the year that you first did so.

 

    0.16  The third part of the notice is the name of the owner of the
copyright.  Hopefully, that's you, in which case your last name will do.
If your company owns the program -- a legal issue which I will address
later in this article -- the company name is appropriate.

 

    0.17  Where do you put the notice?  The general idea is to put it where
people are likely to see it.  Specifically, if you're distributing a
human-readable code listing, put it on the first page in the first few
lines of code, and hard code it so that it appears on the title screen, or
at sign-off, or continuously.  If you're distributing machine-readable
versions only, hard code it.  As an extra precaution, you should also place
the notice on the gummed disk label or in some other fashion permanently
attached to the storage medium.

 

    0.18  Now, why register the program?  If no one ever rips off your
program, you won't care much about registration.  If someone does rip it
off, you'll kick yourself for not having registered it.  The reason is that
if the program is registered before the infringement takes place, you can
recover some big bucks from the infringer, called statutory damages, and
the court can order the infringer to pay your attorneys fees.  Registration
only costs $10.00, and it's easy to do yourself.  The only potential
disadvantage is the requirement that you deposit the first and last 25
pages of your source code, which can be inspected (but not copied) by
members of the public.

 

    0.19  Now, someone tell me this:  is this article copyrighted?  Can you
print it?

 

 

    0.20   PART THREE:  WHO OWNS THE PROGRAM YOU WROTE?

 

The starting point of this analysis is that if you wrote the program, you
are the author, and copyright belongs to the author.  HOWEVER, that can
change instantly.  There are two common ways for your ownership to shift to
someone else:  first, your program might be a "work for hire."  Second, you
might sell or assign your "rights" in the program, which for our purposes
means the copyright.

 

    0.21  Most of the programs which you write at work, if not all of them,
belong to your employer.  That's because a program prepared by an employee
within the scope of his or her employment is a "work for hire," and the
employer is considered the "author."  This is more or less automatic if you
are an employee -- no written agreement is necessary to make your employer
the copyright owner.  By contrast, if you can convince your employer to let
you be the copyright owner, you must have that agreement in writing.

 

    0.22  By the way, before you give up hope of owning the copyright to
the program you wrote at work, figure out if you are really an employee.
That is actually a complex legal question, but I can tell you now that just
because your boss says you are an employee doesn't mean that it's so.  And
remember that if you created the program outside the "scope" of your job,
the program is not a "work for hire."  Finally, in California and probably
elsewhere, the state labor law provides that employees own products they
create on their own time, using their own tools and materials.  Employment
contracts which attempt to make the employer the owner of those off-the-job
"inventions" are void, at least in sunny California.

 

    0.23  Wait a minute:  I'm an independent contractor to Company X, not
an employee.  I come and go as I please, get paid by the hour with no tax
withheld, and was retained to complete a specific project.  I frequently
work at home with my own equipment.  Is the program I'm writing a "work for
hire," owned by the Company?  Maybe, maybe not.  In California, this area
is full of landmines for employers, and gold for contractors.

 

    0.24  A contractor's program is not a "work for hire," and is not owned
by the company, unless (1) there is a written agreement between the company
and the contractor which says that it is, and (2) the work is a
"commissioned work."  A "commissioned work" is one of the following:  (a) a
contribution to a "collective work," (b) an audiovisual work (like a movie,
and maybe like a video game), (c) a translation, (d) a compilation, (e) an
instructional text, (f) a test or answer to a test, or (g) an atlas.  I
know you must be tired of definitions, but this is what the real legal
world is made of.  An example of a collective work is a book of poetry,
with poems contributed by various authors.  A piece of code which is
incorporated into a large program isn't a contribution to a collective
work, but a stand-alone program which is packaged and sold with other
stand-alone programs could be.

 

    0.25  So where are we?  If you are a contract programmer, not an
employee, and your program is a "commissioned work," and you have a written
agreement that says that the program is a "work for hire" owned by the
greedy company, who owns the program?  That's right, the company.  But
guess what?  In California and elsewhere the company just became your
employer!  This means that the company must now provide worker's
compensation benefits for you AND UNEMPLOYMENT INSURANCE.

 

    0.26  PART FOUR: A BRIEF WORD ABOUT LICENSES.

 

When you get software at the local five and dime, the manufacturer claims
that you have a license to use that copy of the program.  The reason for
this is that the manufacturer wants to place more restrictions on your use
of the program than copyright law places.  For example, licenses typically
say you can only use the program on a single designated CPU.  Nothing in
the copyright law says that.  Some licenses say you cannot make an archive
copy.  The copyright law says you can, remember?  But if the license is a
valid license, now you can't.  You can sell or give away your copy of a
program if you purchased it, right?  That's permitted by copyright law, but
the license may prohibit it.  The more restrictive terms of the license
will apply instead of the more liberal copyright rules.

 

    0.27  Is the license valid?  This is hotly debated among lawyers.
(What isn't?  We'll argue about the time of day.)  A few states have passed
or will soon pass laws declaring that they are valid.  A few will go the
other way.  Federal legislation is unlikely.  My argument is that at the
consumer level, the license is not binding because there is no true
negotiation (unless a state law says it is binding), but hey -- that's just
an argument and I'm not saying that that's the law.  In any case, I think
businesses which buy software will be treated differently in court than
consumers.  Businesses should read those licenses and negotiate with the
manufacturer if the terms are unacceptable.

 

    0.28 FINALLY, PART FIVE:  I HAVE A NEAT IDEA. CAN I TRADEMARK IT?
                              WHAT ABOUT PATENT?

 

Sorry, no luck.  Trademark law protects names:  names of products and names
of services.  (Note that I did not say names of companies.  Company names
are not trademarkable.)  If you buy a program that has a trademarked name,
all that means is that you can't sell your own similar program under the
same name.  It has nothing to do with copying the program.

 

    0.29  Patent law can apply to computer programs, but it seldom does.
The main reasons it seldom applies are practical:  the patent process is
too slow and too expensive to do much good in the software world.  There
are also considerable legal hurdles to overcome in order to obtain a
patent.  If, by chance, a program is patented, the patent owner has the
exclusive right to make, use or sell it for 17 years.

 

    0.30  CONCLUSION:  I know this is a long article, but believe it or not
I just scratched the surface. Hopefully, you'll find this information
useful, and you'll stop passing along myths about copyright law.  If anyone
needs more information, I can be reached at (415) 932-4828, or by mail at
1225 Alpine Road, Suite 200, Walnut Creek, CA 94596. Sorry, but I do not
usually have access to the network, so you can't reach me there. Thank you.

 

JORDAN J. BRESLOW

 

--

        Lisa Breslow     (415) 939-2400 x2418

        Varian Instruments 2700 Mitchell Dr.  Walnut Creek, Ca. 94598







Press <CR> !



Press <CR> for next or type CHOICES !1

                   COMPUSERVE INFORMATION SERVICE
               OFFICIAL STATEMENT ON COPYRIGHT POLICY
                            October 1986


[Note: The following statement currently is available on CompuServe.
It appears to have been produced in response to recent questions and
criticism concerning certain ambiguities in CompuServe's policy toward
"public domain" software uploads.  The following text may be obtained
on CompuServe by entering GO COPYRIGHT at any ! prompt.]


      The CompuServe Information Service provides more than 400 online
products covering thousands of subject areas to its more than 300,000 
subscribers.                                                          

      Material offered on the CompuServe Information Service
originates with a wide variety of sources, ranging from creative
public domain software programs uploaded by subscribers to
multi-faceted databases provided by large corporations.               

      The following information will address some commonly-asked
questions about copyright and ownership of material, particularly as
it relates to public domain information and shareware programs.       
                                                                      

--WHAT IS A COMPILATION COPYRIGHT?                                    

      CompuServe has copyrighted the contents of the CompuServe
Information Service as a compilation copyright, just as many magazines
and newspapers reserve such a copyright on the contents of their
publications.  This copyright is held in accordance with the 1976
Copyright Act of the United States.

      A compilation copyright is granted when an organization collects
information in a lawful way, adds value to it, and offers it to
others. In this case, the CompuServe Information Service is a
value-added product; CompuServe Incorporated has committed substantial
financial resources to collecting more than 400 databases and offering
them in an organized, structured way to a defined user base through a
nationwide telecommunications network.  The compilation copyright is
intended to protect that substantial investment from unauthorized
exploitation.  This does NOT mean that CompuServe assumes ownership of
individual programs and databases provided to the system by
subscribers or information providers. 


--IF I UPLOAD A SOFTWARE PROGRAM I'VE DEVELOPED TO COMPUSERVE, DO I
STILL RETAIN OWNERSHIP OF THE PROGRAM?

      Yes, you do.  CompuServe's compilation copyright does NOT
supersede individual ownership rights or copyrights to any of the
material furnished to the Service by subscribers or information
providers.

      For example, a subscriber who creates a program and uploads it
to a CompuServe forum data library STILL OWNS that program, and may
upload it to other information services and bulletin board systems.

      It should be noted, however, that CompuServe cannot grant any
redistribution rights for materials copyrighted by the author, unless
specifically authorized to do so, CompuServe does not own the material
or the copyright.  These rights must be obtained directly from the
author.


--WHAT IS COMPUSERVE'S STANCE TOWARD COPYRIGHTED, PUBLIC DOMAIN, AND
SHAREWARE PROGRAMS?

      Each of these types of property have special characteristics,
and deserves separate explanation:

      COPYRIGHT.  CompuServe does not allow copyrighted material to be
  placed on the CompuServe Information Service without the author's
  permission.  Only the owner(s) or persons they specifically
  authorize may upload copyrighted material to the Service.
      Any subscriber may download copyrighted material for their own
  use. Any subscriber may also non-commercially redistribute a
  copyrighted program with the expressed permission of the owner or
  authorized person. Permission must be specified in the document, on
  the Service, or must be obtained directly from the author.  

      PUBLIC DOMAIN.  Any subscriber may upload public domain programs
  to the Service.  Any subscriber may download public domain programs
  for their own use or non-commercially redistribute a public domain
  program. 

      SHAREWARE.  Only the owner or an authorized person may upload
  shareware programs.  Any subscriber may download shareware programs
  for their own use, subject to the terms provided by the owner.  Any
  subscriber may non-commercially redistribute a shareware program
  subject to the provided terms explicitly displayed in the software
  itself, or with permission of the owner or authorized person. 

See below for more information about redistribution guidelines.


--AS A COMPUSERVE SUBSCRIBER, CAN I DOWNLOAD PUBLIC DOMAIN INFORMATION
AND SHAREWARE PROGRAMS FOR MY OWN USE FROM COMPUSERVE FORUM DATA
LIBRARIES?      

       Yes, you can.  Public domain information and shareware programs
are uploaded to CompuServe data libraries by their authors for use by
other CompuServe subscribers. 


--MAY I DOWNLOAD PROGRAMS FROM COMPUSERVE FORUM DATA LIBRARIES AND
SHARE   THEM WITH A FRIEND, OR UPLOAD THEM TO ANOTHER BULLETIN BOARD
SYSTEM?

       In keeping with the spirit of the development of public domain
information and shareware, it is not CompuServe's current policy to
prevent casual redistribution of this type of information -- this is
low volume and low frequency use or redistribution of information
where no commercialism is involved.  This means that a customer may
download a file and share it with others for no commercial gain --
either via a bulletin board service, diskette, or other means.

       A subscriber may not, however, download a large number of files
for redistribution via any means, nor is it acceptable for a
subscriber to update another bulletin board regularly with files
obtained from CompuServe.

       It's important to note that CompuServe cannot grant
redistribution rights for programs clearly copyrighted by the author,
unless specifically authorized to do so. Such permission must be
obtained directly from the author of the program. 


--MAY I DOWNLOAD AND RESELL A PROGRAM FROM A COMPUSERVE FORUM DATA
LIBRARY?      

        Commercial exploitation of material contained on the
CompuServe Information Service is specifically prohibited by the
CompuServe Service agreement, to which each subscriber agrees before
being permitted to access the Service.  Therefore, subscribers cannot
lawfully download and redistribute public information or shareware
programs for personal gain.

        In addition, mass redistribution of public domain information
or shareware is also prohibited.  Mass distribution is defined as high
frequency and/or high volume transfers. 


--WHAT ARE THE PENALTIES FOR VIOLATING THE COMPILATION COPYRIGHT OR
SERVICE AGREEMENT PROVISIONS?

        When a situation involving exploitation is brought to
CompuServe's attention, we investigate and, if warranted, remind the
violator of the terms of the Service Agreement.  If subsequent
violations are reported, access to the CompuServe Information Service
may be terminated for the violator and, in extreme cases, a letter is
sent from our legal counsel asking that he or she cease and desist, or
risk further legal action.

        This is done as a positive step to protect the value and use
of the material for CompuServe Information Service subscribers, and to
discourage unauthorized redistribution of that material.


                   Thank you for using CompuServe!



[One user's commentary: From the above, it appears that CompuServe is
grappling with finding some way to protect its investment in
establishing and maintaining a library of user-supported materials.
The recent adoption of a policy of not charging for upload time
is a two-edged sword: it is both a boon to the subscriber who goes to
the trouble of uploading materials to CompuServe and a clear way for
CompuServe to show that it has "paid" some consideration for the the
material.

However, nothing CompuServe may do can allow it to gather in rights
which have been scattered to the public domain.  As a fundamental
concept of intellectual property law, once something is placed within
the public domain, even the original author cannot reclaim it.

CompuServe would appear to be justified in its stance that it holds a
compilation copyright on its contents as a whole.  It would be
difficult to argue with this position because were it not the case,
there would be little or no incentive for CompuServe to offer the
services which it does.  Similarly, a number of sysops of hobbyist
bulletin boards (FIDOs, etc.) have clearly stated policies saying that
they do not favor or permit massive downloadings of files on their
systems.

CompuServe's concern appear to revolve around a need and desire to
protect its contents from being "cloned" onto a competing commercial
or non-commercial system.  Unfortunately, the line between casual
redistribution and "mass redistribution" or "updating another bulletin
board regularly" is both ill-defined and subjective.

The CompuServe subscriber agreement is a much stronger protection for
CompuServe than anything in copyright law.  It gives CompuServe the
simple right to suspend the subscription of anyone whom it believes is
using its services in an undesirable manner.  End of story.

It is unlikely that CompuServe or any other service, be it commercial
or hobbyist supported, will survive very long unless it adds some
perceived value for its users.  CompuServe's value lies in its
providing a national network, extensive libraries (both public domain
and proprietary), and a multi-user system available at all hours.
While the hobbyist bulletin boards, including FIDO and FIDO echomail,
provide similar services, they serve different (even if overlapping)
user communities.

Carl Neiburger, professional journalist and editor of the Silicon
Valley Rainbow newsletter, proposes a simple way in which anyone
uploading material to CompuServe can protect his or her interest in
the ownership and/or public domain status of the material being
uploaded:

     "On the material I have uploaded to CompuServe so far,
     I have chosen one of these options:
  
     1) Omitting any copyright, making it automatically public
     domain. As I understand it, CompuServe acknowledges that
     public domain is public domain and that's that.
  
     2) Attaching a copyright that, in effect, asserts authorship
     but no financial control, i.e. "Free license is granted for
     non-commercial use."  That amounts to saying, "It's mine, but
     I'm giving it away and you can give it away (but not sell it),
     too."  The idea is to allow broad distribution of these 
     programs, and I hope that CompuServe accepts this desire and
     does not interfere with it.

     Other people may and do upload software with their own license
     restrictions. It seems to me that CompuServe's policy on
     allowing downloading and distribution should be governed by
     these licenses rather than the company's best guess.

     At the same time, of course, authors are obliged to be realistic
     and up front about their licenses and expectations, which I
     think they are.  I have seen, "If you like this program, send 
     me $10'; I haven't seen, "You just downloaded my program; send 
     me $200."


In conclusion, it appears that CompuServe's only intent at the moment
is to restrict the wholesale downloading of materials on its service
for the specific purpose of placing those materials in their
collective entirety on a competing commercial or non-commercial
service.  CompuServe's only practical means to prevent this is to
refuse the subscription of anyone who engages in this practice.
Authors of public domain and/or shareware materials who desire
additional assurances may place appropriate copyright notices on their
materials and/or upload their materials to multiple commercial and
non-commercial services thus preventing the vesting of copyright
ownership or control in CompuServe.
