“Don’t Touch My Code!”

Copyright for Fun and Profit

by Rey Muradaz, JD

Muradaz & Associates

Why We’re Doing This• To clarify misconceptions about copyright.• To help you understand your rights and

obligations when it comes to code-sharing.• To show you how to clearly convey what

you’re allowing others to do with your code.• Two Key Takeaways:

– If you're making code available to others, MAKE YOUR INTENTIONS CLEAR.

– If you want to build on the work of others, ASSUME YOU NEED PERMISSION.

What We’re Going To Cover

• What Copyright Isn't • What Copyright Is (and some Exceptions)• What Copyright Means• What A License Is• Licensing Alternatives and Considerations• Example License Language• A Simple Software License • Links for More Information

What Copyright Isn’t—Patent

• Covers inventions/processes (utility) or ornamental designs (design)

• For utility patent, invention must be novel, useful and non-obvious

• Period of protection: 14/17/20 years• Patent application must be filed to receive

protection

What Copyright Isn’t—Trademark

• Words, names, symbols or devices used to identify goods and services

• Must distinguish the owner’s goods or services

• Registration not required, but unregistered trademark has limited protection

• Law protects the mark itself as well as any similar uses which might cause confusion

What Copyright Isn’t—Other

Things Copyright Doesn’t Cover:• Ideas

– Ideas cannot be copyrighted, only the concrete expression of the idea.

• Facts– Can’t copyright facts, but unique

compilations or recitations of facts can be protected (like phone books or newspaper stories).

What Copyright Is—Rights

• Copyright is the right assigned to the creator of a work to control the use, reproduction and dissemination of that work as well as the creation of “derivative works”.

• Five rights: Reproduction, modification, distribution, public performance and public display.

• Of these, we’re most concerned with the first three.

What Copyright Is—Protection

• Triggered when work is fixed in a tangible medium of expression.

• It attaches instantly and immediately.• Registration is no longer required.• Definition of Fixed: “. . . perceptible either

directly or with the aid of a machine or device.” USCO FAQ.

• Fixed—momentary presence in RAM has been considered to be ‘fixed’, though some scholars take issue with that interpretation.

What Copyright Is—Term

• Works created by an individual post-1/1/78– Life of the author plus 50 70 years.

• Work for hire (owned by a corporation)– 75 95 years from the date of publication

or 100 120 years from the date of creation, whichever is shorter.

Exceptions to Copyright

• Works put into the Public Domain• Fair Use• Derivative Works (not technically an

exception)

Exceptions to Copyright—Public Domain

Several ways works become Public Domain:• Copyright expires (e.g., pre-1/1/78 works

published more than 95 years ago).• Improper renewal of copyright or improper

use of notice (for pre-3/1/89 works only).• Works created by FEDERAL government

employees and officers as part of their jobs (does NOT apply to STATE government materials).

• Author explicitly places the work in the public domain.

Exceptions to Copyright—Public Domain

Works DO NOT become Public Domain simply by being published, EVEN IF NO COPYRIGHT IS EXPLICITLY ASSERTED.

Exceptions to Copyright—Fair Use

Under the Fair Use Doctrine, you:• CAN reproduce part (and in some cases all)

of a work as the basis for comment, criticism, parody, illustration or education.

• CANNOT simply distribute or modify a copyrighted work (whether or not for profit) without the express permission of the author of the work.

Exceptions to Copyright—Fair Use

Fair Use is a four-part test (17 USC §107):1. The purpose and character of the use,

including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. The nature of the copyrighted work;3. The amount and substantiality of the

portion used in relation to the copyrighted work as a whole; and

4. The effect of the use on the potential market for or value of the copyrighted work.

Exceptions to Copyright—Derivative Works

• A “work” is a “derivative work” if it is based upon one or more preexisting works with such modifications as to constitute an “original work of authorship” (17 USC §101).

• Derivative works are independently copyrightable.

• Derivative work cannot be published by a different author without the permission of the underlying copyright holder.

Side Issue—Who Owns the Copyright?

• The author normally owns copyright, in absence of assignment.

• For a Derivative Work, each author owns the copyright for his/her original work.

• If you’re an employee, the employer owns the copyright as a “work made for hire.”

• ***BUT*** If you’re an independent contractor, YOU own the copyright to your work. To give it to the contracting party, you must specifically assign it in writing.

What Copyright Means

• You (as an author) have the sole right to determine what happens to the works you create.

• You (as a consumer) can’t use someone else’s work without some kind of permission, except in limited circumstances.

• Copyright holder gets to set the licensing terms.

What Is A License?

A license is the specific language used to explain the terms under which the copyright holder’s work can be used.

Two Licensing Considerations

• What you want people to do with your code (modify or not, keep your notices intact)– Accomplished through Use terms

• What you DON’T want people to do to you (sue for damages)– Accomplished through

Warranty/Disclaimer language

Licensing Alternatives

Licenses can run the gamut from very liberal grants of rights and reuse to very restrictive.

• Least restrictive: Public Domain– Any subsequent use cannot be restricted

by the author– Can’t rescind the grant once it’s made

• Most restrictive: “Use But Don’t Touch”– Most EULA or shrinkwrap licenses on

software today (no modifications, no reverse-engineering, etc.)

Licensing Alternatives Continued

Middle Ground alternatives:• Do anything you want to the code, but

preserve my copyright notice (OSI MIT License).

• Any modified version must be made available under the same terms as the original was (GNU GPL).

• You can use the code as-is, but no modifications are allowed (FuseQ License).

Example License Language

• OSI MIT License• GNU GPL• FuseQ License

A Simple Software License

• Simple Software License– Fusedoc text to incorporate

Reality Check

• Practically speaking, copyright may be difficult to enforce.

• But, license language provides useful guidance (and deterrence).

Links for More Information• US Copyright Office, Copyright Basics:

http://lcweb.loc.gov/copyright/circs/circ1.html

• US Copyright Office, FAQ: http://lcweb.loc.gov/copyright/faq.html

• Oppedahl & Larson Web Law FAQ: http://www.patents.com/weblaw.sht

• MegaLaw Intellectual Property Links: http://www.megalaw.com/top/intellectual.php

• Legal Information Institute (source material): http://www.law.cornell.edu/topics/copyright.html

• Ladera Press--Internet Law and Business Handbook: http://www.laderapress.com

Conclusion

Remember two key points:

1. If you’re distributing code, MAKE YOUR INTENTIONS CLEAR.

2. If you want to use someone else’s code, and they failed to follow Step 1, ASK FOR PERMISSION.

Thanks for coming—hope you found this useful! For more information, contact me at rey@muradaz.com.