October 2016

Copyright Tools for Protecting Software

3 min

For businesses that run on software, protecting intellectual property is even more important than locking the office door at night. IP protection in the United States comes in many forms, including patents, copyrights, and trade secret laws. Patents have long been considered the gold standard in intellectual property, in large part because they protect inventive concepts and are not limited to specific expressions. However, software companies should think beyond patents in protecting their IP, especially since the Supreme Court in 2014's Alice Corp. v. CLS Bank International, 134 S. Ct. 2347, limited the field of software patentability, and the Post Grant Review system installed by the America Invents Act (Pub. L. 112-29) invalidates more software patents by the day.

Indeed, rather than investing heavily in patents, many software companies have returned to one of software's first allies in the IP sphere: the United States Copyright Office. Copyright exists as soon as a work is "fixed in a tangible means of expression" and, even without registration, provides exclusivity for up to the life of the author plus ninety years—an eternity in the fast-changing world of software. Registration provides additional benefits if it is done before any infringement occurs, including the availability of statutory damages and the ability to recover attorneys' fees as a prevailing party – a rarity in the American judicial system. Copyright registrations can typically be obtained relatively easily and cheaply: a short application form, deposit material – which for software is a portion of the source code – and a nominal fee are all it takes to become registered. Importantly, copyright owners (even without registration) can avail themselves of one of the swiftest rights-enforcement tools in existence: the Digital Millennium Copyright Act's (DMCA) takedown provision.

The DMCA's relationship with copyrighted software is constantly evolving. Its initial involvement seemed a natural fit: software companies were as successful at removing bootleg copies of expensive home office or photo editing software from peer-to-peer networks as publishers were at removing pirated movies and music. However, as more of the objects with which we interact become imbued with algorithmic learning capabilities—becoming members of the long-awaited "Internet of Things"—software begins to show up in nontraditional places. Cars, refrigerators, jewelry, trash cans, beer glasses, and even toilets now contain copyrightable software. Accordingly, companies that in the past might have relied on design patents or trade dress should also consider the cheap and effective hammer of copyright law.

The power dynamic between end users and manufacturers of these smart products is in flux. While "jailbreaking"—the act of opening up the walled garden of a device's software ecosystem to introduce new, unsanctioned programs—was formerly forbidden, the Library of Congress created an exception to allow it in 2012. The exception applied only to smartphones, however, and not tablets, even though the divide between the two categories has become virtually invisible. This summer, the Electronic Frontier Foundation (EFF) filed a lawsuit challenging the DMCA's anti-circumvention provision (17 U.S.C. § 1201(a)) in its entirety as an unconstitutional restraint on lawful speech. See Green v. U.S. Dept. of Justice, No. 1:16-cv-1492 (D.D.C. filed July 21, 2016). In several states, a true grassroots movement is growing among farmers for the "right to repair" tractors and other farm equipment without fear of being held liable for tinkering with software. And on August 5, the EFF and open-source activist Cory Doctorow filed a petition requesting that the FTC require products equipped with rights-management software to be prominently labeled for consumers, much like cancer warnings on cigarettes.

Regardless of the push-and-pull concerning the outer bounds of its scope and power, copyright law remains a primary tool for software-based enterprises. Requiring little upfront investment, software owners in today's viral-speed business environment may find it best to inoculate themselves with copyright registrations before letting any of their products into the market.