Date: Thursday, 12 April 1984  00:58-MST
From: Ron Fowler
To:   All
Re:   INFO-COPYRIGHT AM DIGEST: APRIL 12, 1984

[ copyright (c) 1984 Ronald G. Fowler ]

     There has been some controversy lately regarding the
distribution of public domain software with respect to the copyright
law.  I've done some preliminary research, and thought I'd share my
findings with the group.

     Specifically in question has been Irv Hoff's copyright of his
MDM modem series, especially as it relates to Ward Christensen's
original work and Mark Zeiger's extensive enhancements to the
program.  Prevention of "profit-taking" and sale of public-domain
software has also been discussed.

     Fundamental to securing copyright protecton is the publication
of a work; generally you may copyright unpublished work without
restriction (i.e., you don't have to maintain a copyright notice in
the work).  Legally, 'publishing' is the "distribution of copies ...
to the public, by sale or other transfer of ownership, or by rental,
lease or lending".  I think we can safely say that work distributed
by SIG/M and the CPMUG can be deemed legally "published".

     Both the old (1909) copyright law and the new (1978) require a
that a copyright notice be placed in the work, in order to secure the
copyright.  While the newer law addresses procedures for omission of
this notice (in order that a mistaken omission not cause loss of
copyright protection) the older law did not. Work published prior to
1 January, 1978 falls under the jurisdiction of the older law.  In
fact, Copyright Office Circular "R1" specifically mentions this
circumstance:

          "If a work was published under the copyright owner's
          authority before January 1, 1978, without a proper
          copyright notice, all copyright protection for that work
          was permanently lost in the United States.  The new
          copyright law does not provide retroactive protection for
          those works."

     Now MODEM2 was published by CPMUG, without copyright notice, in
1977.  So much for any claim poor Ward might have.

     MODEM2 is therefore unquestionably in the public domain.

     (Note that the terms "copyright" and "public domain" are
mutually exclusive, under the law.  "Public domain" is work without
copyright, either by expiration of an existing copyright, or by
forfeiture of copyright by the author.  Hence, a disclaimer like
"Copyright (c) 1984 by Calvin C. Codehacker: contributed to the
public domain, may not be sold commercially" is a contradiction in
terms, and may very well jeopardize the author's right to copyright.
For that reason, I *never* refer to the "public domain" in any
programs I introduce to the user community for which I desire to
retain copyright protection).

     Note that there is absolutely *nothing* to prevent a commercial
interest from selling public domain work, legally or ethically.  Have
you ever seen an anthology of Edgar Allen Poe, or a recently
reprinted "Moby Dick", both of which have fallen into the public
domain?  Has sale of these caused any kind of public outcry of
"ripoff!"?  Think about it.

     Back to MODEM2 and MODEM7: Zeiger and Hoff's enhancements have
been published (SIG/M, I believe) after 1 January, 1978, and thus
fall under the jusrisdiction of the 1978 law, which provides for
"derivative work".  A "derivative work" is "a work based on one or
more preexisting works".  This seems to be subject to copyrights held
by the author of the previous work, but is not spelled out
specifically in the material I've seen so far.  I'd hazard to guess
that Hoff and Zeiger are on pretty stable ground, though, *unless*
either has failed to actually secure the copyright by registration.
That's where things begin to get a little shaky.

     Generally, you don't have to register to claim copyright; you
can register anytime within five years of publication and still
establish prima facie evidence in court of the copyright's
validatity. There is a "gotcha" though: if the work is not registered
within 3 months after publication, then no statutory damages or
attorney's fees are available to the plaintiff in an infringement
suit.  In this case, only actual damages and lost profits are
available, and in "free" distribution software, there are very little
damages indeed (perhaps if the author is a professional who receives
value from the circulation of his name in "free" software, the loss
of that circulation could constitute a damage....).

     Now I think we have a clear idea of how to proceed with new
"freeware":

1)   Claim copyright in the published work (copyright circular "R61"
     suggests placing the notice in the program's sign-on message, if
     it has one. By the way, this pub is specific to computer
     software).

2)   Do not fail to actually register the copyright with the
     Copyright office, within 3 months of publication.

3)   Never mention the public domain in relation to your work.

     With these requirements met, the software is protected to the
extent that you can confidently proceed legally against infringers,
including attorney's fees and statutory damages. Merely by virtue of
your authorship (and, of course, your copyright).

And finally...

     If you publish work with the Copyright notice included, you
*must* deposit a copy with the Copyright office for the use of the
Library of Congress; failure to do so can result in fines and other
penalties.  (Note that there are certain exceptions and modifications
to this rule for various types of copyright works).

     Forms are available from the U.S. Government Copyright Office:
dial (202) 287-9100.  Ask for form TX and Circulars R1 and R61.  The
cheapskates will only send you five TX's for one phone call.