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Registering a Software Copyright

On this page...
  1. How to prove ownership
  2. How to claim money damages
  3. Who is the author?
  4. How to prove copying

Problem 1: In court, how can you prove you wrote and own the software? {#software-ownership}

If you think about it, judges and juries are not programmers. They do not check in to version control systems. They do not manage system logs. Now, imagine someone copies your software. You sue them in court to stop their infringement. First, you need to show the court that you are the author or owner of the software.

Imagine showing the court your version control system to prove ownership. You produce the checkin dates and difference between software versions. Do you think the judge and jury will understand? Are you willing to rest your case on it? Sure, this is this good evidence of authorship or ownership. It might require a paid software engineer to explain to the judge and jury. Of course, the defense will have their own expert to explain how your software engineer is incompetent.

Copyright registration certificates, on the other hand, are automatically accepted as proof of authorship and ownership of software copyright. This puts the entire burden and cost on the defense to show that you did not write your software. So, the costly “battle of the legal experts” is replaced by providing a certified copy of the copyright registration to the court.

Problem 2: In court, how can you show the damage done by copying software? {#software-infringement-damages}

How much does a single copy of your software cost? The apps at the iPhone store cost only $1 or $5. Off the shelf software typically is $40 to $400. What if you can not count the infringing copies? Will the lost profits be difficult to know?

Sometimes the damage done by a software infringer can prove difficult to measure. You know your sales have gone down, but, its hard to know just how much. To prove how badly you have been injured by the unauthorized copying of your software, you may need another expert, like a business school professor or an economics expert. This expert will explain to the court how you have been damaged and the amount of lost profits due to the unauthorized copying. Again, the defense will disagree, and you will have another costly battle of the experts.

Copyright registration can help. It provides statutory damages. By looking at the number of copies or kind of infringement, the court can award money damages without knowing how much profit was lost or how you were damaged. Statutory damages can be up to $30,000. If the court finds willful infringement (like a software pirate), up to $150,000. Copyright defendants might take this seriously. Only copyright law has “statutory damages”: not patent law and not trademark law. Plus, it makes your case more interesting to contingency fee attorneys.

Of course, copyright lawsuits also involve attorney’s fees. Would you like the defense to pay those? Registration also allows an award of attorney’s fees. If you do not register your software copyright before the infringement, you can not claim statutory damages and attorney's fees.

Common sense tells you that if you pay for something, you own it. However, hiring an independent contractor to write software does not result in ownership of the copyright passing to you. Instead, you receive a “license” to use the software. Many times, even programmers are unaware of these rights -- they believe that the software belongs to their client.

There are two ways to ensure that software belongs to you. First, employ the programmer as your regular employee, full-time, usually W2, whose job is to write software. Second, sign a transfer or work-for-hire agreement to show that ownership belongs to you. If you uses an out-of-country or overseas developer, well, the foreign countries copyright laws likely apply, not the US Copyright law.

Software copyrights protect the creative effort of taking an idea or concept and turning it into written source code. Software copyrights do not protect the ideas, concepts or functions of the software. Instead, copyright protects against duplication of the software's object code, source code, and sometimes, the organization of the software.

Proving Copying: How software fingerprinting can help in court {#proving-software-copying}

By planning ahead, software can be fingerprinted. These fingerprints, which have no functional purpose, shows that a software copy must have originated from you. Fingerprinting also shows that a software copy could not have been as a result of independent writing. Fingerprinting the source code and object code can help make your case easier to prove in court.

The Law Office of Andrew P. Lahser offers a fixed-fee service to register software copyrights. This service includes:

  • Formal Representation before US Copyright Office by Licensed Attorney.
  • Guide to fingerprinting your software in order to show intentional copying in court.
  • Filing copyright application using your source code.
  • Faster electronic filing and processing by US Copyright Office.
  • Docketing and monitoring of your application at the US Copyright Office.
  • Guide to placing copyright markings on your software files.

Software copyright registration service takes about 7 days to complete. Copyright applications are generally reviewed by the US Copyright office 9 to 18 months after filing.

What if 'likelihood of confusion' is with a trademark I already own?

Prior to Filing: the Secrecy Problem