If you publish computer
software, the single most important legal protection
available to you is the federal copyright law. Here's
how to make it work for you.
If you publish computer software, the single most
important legal protection available to you is the
federal copyright law. But many software authors don't
take advantage of its protections, and risk finding
themselves virtually at the mercy of infringers -- all
because they don't send in a simple registration form
as soon as the software is published.
Why the Automatic Copyright Isn't
Even if you don't put that little © on your work,
you automatically get a copyright the instant your work
of expression becomes fixed in a tangible medium.
Theoretically, this means that you own the copyright,
and no one may copy, distribute, display or make
adaptations of the work without your permission. So
far, so good.
The problem comes if someone infringes on your
copyright. Then, suddenly, the protection is no longer
automatic. It's up to you to file a lawsuit in federal
court and to convince the judge to order the other
party to stop the infringement and compensate you for
What's more, even though you own the copyright, you
can't file your lawsuit unless you have registered the
copyright with the U.S. Copyright Office. Until you
register, there's nothing you can do to stop the
infringement.You may be thinking, "Big deal -- I'll
register if and when someone infringes on my software
and I need to file a lawsuit." But if an infringement
occurs, you'll want to register in a hurry so you can
file your suit -- and "expedited registration" costs
several hundred dollars extra.
There is another -- even more compelling -- reason
to register, and as soon as possible after the software
is published: As a practical matter, if you haven't
registered in a timely manner, it may not be worthwhile
for you to bring a lawsuit against an infringer.
Federal lawsuits usually cost a hellish amount of
money in lawyer fees and litigation costs. This means
that to make a copyright infringement lawsuit
worthwhile, you must be able to pry a lot of money
loose from the other party.
But it is often very hard to show exactly how much
monetary damage a copyright infringement has caused. So
even if you can prove infringement, you may not be able
to show very much in the way of actual damages. This
means that you might end up spending $50,000 on legal
fees but recover only $40,000 in actual damages. In
other words, relying on the recovery of actual damages
creates a substantial risk that you will lose money
bringing the suit.
But if you registered the work before the
infringement began or within three months of the date
the work was published, you may be entitled to recover
from the infringer, in addition to your actual
- your attorney fees and court costs, and
- "statutory damages" -- special damages of up
to $100,000 per infringement -- without having to
establish what damage you actually suffered.
Registration: Cheap Insurance
Not all the benefits of prompt registration relate
to litigation. In fact, early registration can help
keep you out of court. That's because an infringer who
knows that you could recover substantial statutory
damages in court may be more willing to negotiate and
settle out of court.
Since registration is so easy, costs only $45 per
work and provides significant benefits, it's one of the
great insurance deals of all time.
Of course, if what you're publishing probably has no
value to anyone but you, you may want to just place a
copyright notice on the material and not bother to
register. But in most situations, if your work is
valuable enough to publish, it's valuable enough to
Registering a copyright registration is a simple
process; you don't need an attorney. All you need to do
is to fill out a brief application form, which requires
some basic information about the work, including:
- the title of the work
- who created the work an when, and
- who owns the copyright.
You send the application, a fee ($45) and one or two
copies of all or part of the copyrighted work to the U.S. Copyright
Office in Washington, D.C. Web &
Software Development by Stephen Fishman (Nolo),
contains all of the necessary forms and step-by-step
instructions for applying for copyright