Copyrights - Protecting Programs and Data

Copyrights

In the United States, the basis of copyright protection is presented in the U.S. Constitution. The body of legislation supporting constitutional provisions contains laws that elaborate on or expand the constitutional protections. Relevant statutes include the U.S. copyright law of 1978, which was updated in 1998 as the Digital Millennium Copyright Act (DMCA) specifically to deal with computers and other electronic media such as digital video and music. The 1998 changes brought U.S. copyright law into general conformance with the World Intellectual Property Organization treaty of 1996, an international copyright standard to which 95 countries adhere.

Copyrights are designed to protect the expression of ideas. Thus, a copyright applies to a creative work, such as a story, photograph, song, or pencil sketch. The right to copy an expression of an idea is protected by a copyright. Ideas themselves, the law alleges, are free; anyone with a bright mind can think up anything anyone else can, at least in theory. The intention of a copyright is to allow regular and free exchange of ideas.

The author of a book translates ideas into words on paper. The paper embodies the expression of those ideas and is the author's livelihood. That is, an author hopes to earn a living by presenting ideas in such an appealing manner that others will pay to read them. (The same protection applies to pieces of music, plays, films, and works of art, each of which is a personal expression of ideas.) The law protects an individual's right to earn a living, while recognizing that exchanging ideas supports the intellectual growth of society. The copyright says that a particular way of expressing an idea belongs to the author. For example, in music, there may be two or three copyrights related to a single creation: A composer can copyright a song, an arranger can copyright an arrangement of that song, and an artist can copyright a specific performance of that arrangement of that song. The price you pay for a ticket to a concert includes compensation for all three creative expressions.

Copyright gives the author the exclusive right to make copies of the expression and sell them to the public. That is, only the author (or booksellers or others working as the author's agents) can sell copies of the author's book.

Definition of Intellectual Property

The U.S. copyright law (§102) states that a copyright can be registered for "original works of authorship fixed in any tangible medium of expression,...from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Again, the copyright does not cover the idea being expressed. "In no case does copyright protection for an original work of authorship extend to any idea." The copyright must apply to an original work, and it must be in some tangible medium of expression.

Only the originator of the expression is entitled to copyright; if an expression has no determinable originator, copyright cannot be granted. Certain works are considered to be in the public domain, owned by the public, by no one in particular. Works of the U.S. government and many other governments are considered to be in the public domain and therefore not subject to copyright. Works generally known, such as the phrase "top o' the mornin' to ye," or the song "Happy Birthday to You," or a recipe for tuna noodle casserole, are also so widely known that it would be very difficult for someone to trace originality and claim a copyright. Finally, copyright lasts for only a limited period of time, so certain very old works, such as the plays of Shakespeare, are in the public domain, their possibility of copyright having expired.

The copyrighted expression must also be in some tangible medium. A story or art work must be written, printed, painted, recorded (on a physical medium such as a plastic record), stored on a magnetic medium (such as a disk or tape), or fixed in some other way. Furthermore, the purpose of the copyright is to promote distribution of the work; therefore, the work must be distributed, even if a fee is charged for a copy.

Originality of Work

The work being copyrighted must be original to the author. As noted previously, some expressions in the public domain are not subject to copyright. A work can be copyrighted even if it contains some public domain material, as long as there is some originality, too. The author does not even have to identify what is public and what is original.

For example, a music historian could copyright a collection of folksongs even if some are in the public domain. To be subject to copyright, something in or about the collection has to be original. The historian might argue that collecting the songs, selecting which ones to include, and putting them in order was the original part. In this case, the copyright law would not protect the folksongs (which would be in the public domain) but would instead protect that specific selection and organization. Someone selling a sheet of paper on which just one of the songs was written would likely not be found to have infringed on the copyright of the historian. Dictionaries can be copyrighted in this way, too; the authors do not claim to own the words, just their expression as a particular dictionary.

Fair Use of Material

The copyright law indicates that the copyrighted object is subject to fair use. A purchaser has the right to use the product in the manner for which it was intended and in a way that does not interfere with the author's rights. Specifically, the law allows "fair use of a copyrighted work, including such use by reproduction in copies… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research." The purpose and effect of the use on the potential market for or value of the work affect the decision of what constitutes fair use. For example, fair use allows making a backup copy of copyrighted software you acquired legally: Your backup copy protects your use against system failures but it doesn't affect the author because you have no need for nor do you want use of two copies at once. The copyright law usually upholds the author's right to a fair return for the work, while encouraging others to use the underlying ideas. Unfair use of a copyrighted item is called piracy.

The invention of the photocopier made it more difficult to enforce fair use. You can argue it is fair use to make a copy of the Tuscany section of a travel book to carry with you and throw away during your holiday so you don't have to carry the whole book with you. Today many commercial copy shops will copy a portionsometimes an entire chapterof a book or a single article out of a journal but refuse to copy an entire volume, citing fair use. With photocopiers, the quality of the copy degrades with each copy, as you know if you have ever tried to read a copy of a copy of a copy of a paper.

The copyright law also has the concept of a first sale: after having bought a copyrighted object, the new owner can give away or resell the object. That is, the copyright owner is entitled to control the first sale of the object. This concept works fine for books: An author is compensated when a bookstore sells a book, but the author earns no additional revenue if the book is later resold at a secondhand store.

Requirements for Registering a Copyright

The copyright is easy to obtain, and mistakes in securing a copyright can be corrected. The first step of registration is notice. Any potential user must be made aware that the work is copyrighted. Each copy must be marked with the copyright symbol ©, the word Copyright, the year, and the author's name. (At one time, these items were followed by All rights reserved to preserve the copyright in certain South American countries. Adding the phrase now is unnecessary but harmless.)

The order of the elements can be changed, and either © or Copyright can be omitted (but not both). Each copy distributed must be so marked, although the law will forgive failure to mark copies if a reasonable attempt is made to recall and mark any ones distributed without a mark.

The copyright must also be officially filed. In the United States a form is completed and submitted to the Copyright Office, along with a nominal fee and a copy of the work. Actually, the Copyright Office requires only the first 25 and the last 25 pages of the work, to help it justify a claim in the event of a court case. The filing must be done within three months after the first distribution of the work. The law allows filing up to five years late, but no infringements before the time of filing can be prosecuted.

A U.S. copyright now lasts for 70 years beyond the death of the last surviving author or, if the item was copyrighted by a company or organization, for 95 years after the date of publication. The international standard is 50 years after the death of the last author or 50 years from publication.

Copyright Infringement

The holder of the copyright must go to court to prove that someone has infringed on the copyright. The infringement must be substantial, and it must be copying, not independent work. In theory, two people might write identically the same song independently, neither knowing the other. These two people would both be entitled to copyright protection for their work. Neither would have infringed on the other, and both would have the right to distribute their work for a fee. Again, copyright is most easily understood for written works of fiction because it is extremely unlikely that two people would express an idea with the same or similar wording.

The independence of nonfiction works is not nearly so clear. Consider, for example, an arithmetic book. Long division can be explained in only so many ways, so two independent books could use similar wording for that explanation. The number of possible alternative examples is limited, so that two authors might independently choose to write the same simple example. However, it is far less likely that two textbook authors would have the same pattern of presentation and the same examples from beginning to end.

Copyrights for Computer Software

The original copyright law envisioned protection for things such as books, songs, and photographs. People can rather easily detect when these items are copied. The separation between public domain and creativity is fairly clear. And the distinction between an idea (feeling, emotion) and its expression is pretty obvious. Works of nonfiction understandably have less leeway for independent expression. Because of programming language constraints and speed and size efficiency, computer programs have less leeway still.

Can a computer program be copyrighted? Yes. The 1976 copyright law was amended in 1980 to include an explicit definition of computer software. However, copyright protection may not be an especially desirable form of protection for computer works. To see why, consider the algorithm used in a given program. The algorithm is the idea, and the statements of the programming language are the expression of the idea. Therefore, protection is allowed for the program statements themselves, but not for the algorithmic concept: copying the code intact is prohibited, but reimplementing the algorithm is permitted. Remember that one purpose of copyright is to promote the dissemination of ideas The algorithm, which is the idea embodied in the computer program, is to be shared.

A second problem with copyright protection for computer works is the requirement that the work be published. A program may be published by distribution of copies of its object code, for example, on a disk. However, if the source code is not distributed, it has not been published. An alleged infringer cannot have violated a copyright on source code if the source code was never published.

Copyrights for Digital Objects

The Digital Millennium Copyright Act (DMCA) of 1998 clarified some issues of digital objects (such as music files, graphics images, data in a database, and also computer programs), but it left others unclear.

Among the provisions of the DMCA are these:

Digital objects can be subject to copyright.

It is a crime to circumvent or disable antipiracy functionality built into an object.

It is a crime to manufacture, sell, or distribute devices that disable antipiracy functionality or that copy digital objects.

However, these devices can be used (and manufactured, sold, or distributed) for research and educational purposes.

It is acceptable to make a backup copy of a digital object as a protection against hardware or software failure or to store copies in an archive.

z Libraries can make up to three copies of a digital object for lending to other libraries.

So, a user can make reasonable copies of an object in the normal course of its use and as a protection against system failures. If a system is regularly backed up and so a digital object (such as a software program) is copied onto many backups, that is not a violation of copyright.

The uncertainty comes in deciding what is considered to be a device to counter piracy. A disassembler or decompiler could support piracy or could be used to study and enhance a program. Someone who decompiles an executable program, studies it to infer its method, and then modifies, compiles, and sells the result is misusing the decompiler. But the distinction is hard to enforce, in part because the usage depends on intent and context. It is as if there were a law saying it is legal to sell a knife to cut vegetables but not to harm people. Knives do not know their uses; the users determine intent and context.

Consider a music CD that you buy for the obvious reason: to listen to again and again. You want to listen to the music on your MP3 player, a reasonable fair use. But the CD is copy protected, so you cannot download the music to your computer to transfer it to your MP3 player. You have been prohibited from reasonable fair use. Furthermore, if you try to do anything to circumvent the antipiracy protection, you violate the antipiracy provision, nor can you buy a tool or program that would let you download your own music to your own MP3 player, because such a tool would violate that provision.

Reaction to the Digital Millennium Copyright Act has not been uniformly favorable. (See, for example, [MAN98, EFF06].) Some say it limits computer security research. Worse, others point out it can be used to prevent exactly the free interchange of ideas that copyright was intended to promote. In 2001 a Princeton University professor, Edward Felten, and students presented a paper on cryptanalysis of the digital watermarking techniques used to protect digital music files from being copied. They had been pressured not to present in the preceding April by music industry groups who threatened legal action under the DMCA.

Digital objects are more problematic than paper ones because they can be copied exactly. Unlike fifth-generation photocopies, each digital copy of a digital object can be identical to the original.

Copyright protects the right of a creator to profit from a copy of an object, even if no money changes hands. The Napster situation (see Sidebar 11-1) is an interesting case, closely related to computer data. It clearly distinguishes between an object and a copy of that object.

An emerging principle is that software, like music, is acquired in a style more like rental than purchase. You purchase not a piece of software, but the right to use it. Clarifying this position, the U.S. No Electronic Theft (NET) Act of 1997 makes it a criminal offense to reproduce or distribute copyrighted works, such as software or digital recordings, even without charge.

The area of copyright protection applied to computer works continues to evolve and is subject to much interpretation by the courts. Therefore, it is not certain what aspects of a computer work are subject to copyright. Courts have ruled that a computer menu design can be copyrighted but that "look and feel" (such as the Microsoft Windows user interface) cannot. But is not the menu design part of the look and feel?

Although copyright protection can be applied to computer works, the copyright concept was conceived before the electronic age, and thus the protection may be less than what we desire. Copyrights do not address all the critical computing system elements that require protection. For example, a programmer might want to protect an algorithm, not the way that algorithm was expressed in a particular programming language. Unfortunately, it may be difficult to obtain copyright protection for an algorithm, at least as copyright law is currently interpreted. Because the copyright laws are evolving, we must also take care when copyrights are used as excuses, as we see in Sidebar 11-2.

Sidebar 11-1: Napster: No Right to Copy

Napster is a web-based clearinghouse for musical files. To see why its existence was problematic, we must first consider its predecessor, MP3. MP3.com was an archive for digital files of music. Users might obtain the MP3 file of a particular song for their personal listening pleasure. Eventually, one of the users might upload a file to MP3.com, which made it available to others. In May 2000, the courts ruled that MP3.com had illegally copied over 45,000 audio CDs and distributed copyright works illegally.

To address the legal issues, music lovers sought an approach one step away from actual distribution, thereby being legal under U.S. laws. Instead of being a digital archive, Napster was designed to be a clearinghouse for individuals. A person might register with Napster to document that he or she had a digital version of a particular performance by an artist. A second person would express interest in that recording, and Napster would connect the two. Thus, Napster never really touched the file itself. Instead, Napster operated a peer-to-peer file swapping service.

In February 2001, the U.S. 9th Circuit Court ruled that Napster infringed on the copyrights of various artists. The Recording Industry Association of America brought the suit, representing thousands of performers.

Yet another step removed is peer-to-peer (P2P) sharing. With P2P you install software that opens all or part of your disk storage for access by others (and you receive similar access to other computers). The security implications are staggering but obvious to anyone reading this book, so we will not list them here. We are concerned now with the legal and ethical aspects of P2P sharing.

The crux of these cases is what a person buys when purchasing a CD. The copyright law holds that a person is not buying the music itself, but is buying the right to use the CD. "Using" the CD means playing it, lending it to a friend, giving it to someone else, or even reselling it. But the original artist has the right to control distribution of copies of it, under the principle of first sale.