Copyrighting Your Software — Why Bother?

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 copyright protection 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 your losses.

What’s more, even though you own the copyright, the U.S. Supreme Court has ruled that 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.

 Statutory Damages

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 damages:

  • your attorney fees and court costs, and
  • “statutory damages” — special damages of up to $150,000 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 $35 to $55 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 register.