Date: 13 Dec 92 22:18:19 CST From: Lance Rose Subject: File 4--SPA EDUCATES THE PUBLIC ON SOFTWARE COPYRIGHTS - NOT! ((MODERATORS' NOTE: The following article is reprinted from Lance Rose's Legally Online" column in BOARDWATCH Magazine (Nov., '92: pp 51-52). A one-year (monthly) subscription to BOARDWATCH can be obtained for $36 at: Boardwatch Magazine; 7586 West Jewell Ave., Suite 200, Lakewood, CO 80232)). SPA EDUCATES PUBLIC ON SOFTWARE COPYRIGHTS -- NOT! By Lance Rose Like many others I know who have some familiarity with computer law, I've always figured that about half of what the Software Publisher's Association (SPA) says about copyright law is true. The rest is mystificationist propaganda designed to make corporate software users run scared from the slightest thought of ever making a software copy without paying someone for it. For instance, the SPA insists to this day that shrinkwrap licenses are airtight and enforceable. At the same time, every other court decision I've seen so far on the subject has refused to enforce such licenses! The SPA is not quite wrong on this subject yet, since shrinkwrap license validity must be decided on a state by state basis; some state court might agree with the SPA position somewhere along the line. The issue could be left arguably open for a hundred years, with shrinkwrap licenses getting cut down right and left by courts of different states, and the SPA hanging on to its enforceability rhetoric in the slim hope that out of 50 states, it will get lucky somewhere. Plausible arguability. Until now, though, I never caught the SPA in a flat-out falsehood. A recent issue of the SPA newsletter distributed to its members contains an article titled "Protect Your Copyrights, Register Software" and subtitled "Register software or lose your rights." Within, it contains several statements along the same lines, culminating in: "if you don't register your software with the Copyright Office within 3 months, after first first publication, you cannot recover statutory damages or attorneys fees." (This is a very important matter in coyright, especially attorneys fees--if a successful copyright owner cannot collect attorneys fees from the infringer, he could end up with very little money after paying off his own lawyer). Now, let's look at the actual section of the Copyright Act in question, Section 412(b): "no award of statutory damages or of attorney's fees...shall be made for...any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work." In other words, after you circulate your software to the public, you can receive statutory damages and attorney's fees in a case enforcing your software copyright as long as you registered your software with the copyright office before the infringement started. With one added, short-term bonus: if you register your software within 3 months after you first circulate it to the public, then you can receive statutory damages and attorney's fees for any infringements within that same 3 month period, whether or not they came before the registration. Under the statute, for example, you might wait 9 years after first publication of our software before you bother to register. That registration will give you the right to claim statutory damages and attorney's fees for any infringements occuring afterwards, but not for any infringements that may have occured in the initial 9 year period before you registered. Compare this with the SPA quotes. According to the SPA, if you don't register within 90 days after publishing the software, you have entirely lost your ability to claim statutory damages and attorneys fees when you enforce your copyright. If you wait 9 years to register, you can't claim such amounts for infringements any time, either before or after your registration. So the SPA totally misread the statute. The only question is whether it was through calculation or mental dullness, both of which SPA has exhibited in the past. Actually, there is a third choice--sloppy statute reading. But then you have to ask why they would shock their members with a headline about the dire consequences of copyright non-registration without taking the time to read the statute and figure out how it really works. Calculation is not out of the question, though. The effect of the misinformation would be to scare software owners into rushing to register their copyrights. This is not a bad thing, and it also serves the SPA's enforcement objectives. SPA likes to threaten corporate infringers of their members' products with copyright registrations in hand. But why deceptively scare corporations into registering with false information, when the correct information, properly presented, would have the same effect? What is the relationship between SPA and its members, anyway? This has been a public service announcement. Don't take candy or copyright law from the SPA. Downloaded From P-80 International Information Systems 304-744-2253