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Copyright and the university community

Permissible copying of software

The University of Texas System Policy1 mandating adherence to the requirements of the copyright laws applies to the electronic copying of software that is protected by copyright just as it applies to the photocopying of printed materials. The owner of the copyright in software has the same exclusive rights as owners of other copyrighted works, including the exclusive right to reproduce the work, to make derivative works from it, and to distribute copies of it by sale or otherwise.2

From time to time the Office of General Counsel of The University of Texas System receives inquiries regarding the proper use of software. Many of the uses inquired about are, in fact, impermissible and would constitute infringements of the rights of the copyright owner if done without permission. Examples of these inquiries are presented at the end of this article.

The law in this area is not so vague, complicated, or difficult to understand as fair use, yet there is widespread misconception about what is permissible.3 Perhaps because the copying of a computer program is so easy and inexpensive compared to the high purchase price of software, it is difficult to believe that it could violate the law, especially when the copying is not for "commercial" gain but for private or personal purposes. Nevertheless, such seemingly innocent copying can subject the infringer to both civil and criminal liability unless done with the permission of the copyright owner.

Determining software copyright status

Only copyright protected software is subject to restrictions on its use, but since a copyright symbol or statement of copyright ownership is no longer required by law as a condition of protection, one cannot safely assume from the absence of such notice that it is permissible to copy the software. There are, nevertheless, probably tens of thousands of software programs that are in the public domain.

Further, there are tens of thousands of programs that are available to the public as "shareware," that can be permissibly downloaded electronically from bulletin boards, etc., and for which one pays a small fee upon deciding to use the software.

Some shareware copyright owners may send a license upon receipt of the required fee, but others do not, and the user will not have proof of a right to possess a copy. There is also a class of software likely to exist on college campuses that has been created by persons employed or studying there and is freely available to others ("freeware"). The users of freeware will not have a written permission or a license to use such software, only an implied permission.

Thus, software programs that are available on an individual's computer or on floppy diskettes can be categorized into (1) those that are clearly in the public domain (often stating so when the program is loaded into memory); (2) those that are definitely licensed to the user (for example, boxed software purchased through normal commercial channels, software that is site or group licensed to the users' employer, and multiuser packs containing only one set of diskettes and documentation that are licensed for a specific number of end users) or that are used with express or implied permission from the creator or copyright owner; and (3) those that are not clearly under license or used with permission and are not clearly in the public domain. The problems presented by the latter category are discussed in this article.

Determining whether software is in the public domain or copyright protected and, if copyright protected, whether it is shareware or freeware or must be licensed may seem at first a daunting task. The following suggestions may help users to categorize most software, leaving only those programs that give no clue at all to their status (category (3) above). This should be a very small group of the total number of programs.4

a. Assume all software is copyright protected even if it does not bear a copyright symbol. This means that the absence of a copyright symbol does not give the user permission to copy the work. The only source for permission to copy copyrighted software is either a specific grant of that right in a license agreement or the express or implied (with regard to freeware) permission of the copyright owner.

b. Maintain in a secure place any packaging materials that may contain the provisions of a license agreement. Read these materials for information about what permitted copying.

c. Check with the person in charge of information management to determine which software is site or group licensed to the employer and refer to those licenses for information about users' right to copy.

d. Look at the programs' initial screens, diskette outer surfaces, and program documentation for information on the copyright status of the software or a user's right to copy. Usually, for example, if a copyright owner wants the software to be freely copied, he or she will say so somewhere.

Copyright owners' rights

The specific rights of copyright owners are set out in Section 106 of the copyright law.

These exclusive rights are limited with respect to software by the provisions of Section 117. In effect, the law permits (1) the making of a backup archival copy because of the ever-present danger of computer system failure and (2) the automatic copying of the program as an integral part of how computers operate. (Every time a program is "run," the computer copies it from where it is stored in an area of the computer to which the user does not have immediate access into the area of the processor called random access memory so that it is readily available to the user.)

Except for copying permitted by a) fair use, b) library reproduction, and c) transfer of copies,7 anything else one might want to do with a copyright protected software program is impermissible. The application of the fair use exception to the reproduction of software is, however, problematic. The statutory factors8 seem ill-suited to the electronic medium, especially considering that copying anything less than all of a software program might jeopardize its proper operation. The Guidelines for the fair use of print media, developed in 1976,9 also seem unsuited for application to software10. More appropriate guidelines are needed to help educators and others determine whether a reproduction of software may be a fair use.

Nevertheless, applying the statutory factors and the Guidelines developed for educational copying of print media, copying an entire software program even for a nonprofit educational use would be hard to justify as a fair use because of the effect of such copying, were it to be widespread, upon the potential market for or value of the copyrighted work.

The problem with the fair use of software stems in part from the fact that users probably do not copy software programs to gain access to the ideas expressed in them (except for reverse engineering), but rather, to gain the economic benefit of what they can do as functional computer programs. In this light, copying an entire program for personal use in lieu of purchasing the program seems entirely indefensible as a fair use.

Civil and criminal liability

There is both civil and criminal liability for infringement of the rights of a copyright owner. An infringer may be sued for either actual or statutory damages and, in addition, may be prosecuted for criminal violations.11 The copyright owner has the right to try to prove what his or her actual damages are and collect that amount12 or may elect to receive the damages authorized by statute ("statutory damages") in lieu of actual damages.13 The statutory amount currently is limited to $100,000 per work infringed in any case where the court finds that there was willful infringement.14 In either case, the copyright owner may, in the court's discretion, recover costs, which may include attorneys' fees.15 Any person found guilty under the criminal sections of the law may be imprisoned up to one year, fined up to $25,000, or both.16 These provisions of the law apply to all cases of infringement regardless of the media involved.

It is most important to understand that the court need not find a willful infringement (that the infringer intended to infringe) in order to award damages or find guilt. Copying software simply is an infringement and a crime even if the person copying it does not know that copying is a violation of the rights of others and against the law. In short, one need not prove that the infringer intended to break the law or infringe someone's rights; all that has to be shown is that he or she copied the software, and that can be shown by circumstantial evidence such as that the infringer had access to the original software and the copy is substantially similar to the original.

Recommendations

Respect for the rights of software copyright owners is a serious concern and requires that individuals at every level cooperate with and conform their activities to System Policy. The Office of General Counsel recommends that all employees of System and its component institutions monitor their use of software and avoid the use of unauthorized copies. All computers should be free of such unauthorized programs, and diskettes containing same should be removed from offices and laboratories.

Frequently asked questions

1. May I make a copy of software licensed to the University and take it home in order to do University work on my home computer?

Copying of licensed software to do work for the licensee may be expressly authorized in the license agreement, as is the case with some Word Perfectr software. Otherwise, it is not permitted. Even under "site" licensing, the owner licenses the user to use the software on any computer at the site and the use of the software off the site is not generally permitted.

2. May I make more than one backup copy?

Section 117 authorizes "the making of another copy . . . for archival purposes only . . ." Section 117 also advises that "all archival copies" should be destroyed if possession of the original ceases to be rightful. This language arguably contemplates more than a single backup copy; nevertheless, the backup function is adequately performed by one backup at a time. There is controversy as to whether there is a right to make a copy of the archival copy if something happens to the working copy in order to have a backup to the archival copy, or whether the first (and only) backup copy must be used without additional backup until another original can be purchased.

3. May I copy software that is on a System or University network onto my hard drive, so that I can still run such programs in case the network goes down?

The software licensed to the University and System for use on computer networks may be licensed under special agreements. If the agreement includes the right to copy the software onto all users' hard drives as a precaution against system failure, then such copying is with permission. Otherwise, the answer is unclear since such copying is subject to the controversy over how many backups are permitted by law, as described above.

4. May I put a program that is licensed for a single central processing unit on a network?

No.

5. Once I have purchased a software program, why can't I do whatever I want with it?

Making copies of copyrighted materials is one of the exclusive rights of the copyright owner. What you have purchased is the right to use a single copy of software, not the copyright itself. You may only acquire rights in the owner's copyright by permission or in a license agreement. Copyright rights in software are rarely sold to end users like tangible property; they exist in the copyright owner, not in the individual tangible copies of the software. The software can only be used in ways that do not infringe upon the rights that the owner of the copyright has retained.

6. Would the University or System defend an individual accused of infringement on University campuses or System offices?

The System Policy sets out guidelines for its responsibility if an individual is charged with alleged copyright infringement. Generally, the System will defend an individual who has followed System Policy.

Footnotes:

1 See Fair use of copyrighted works.

2 17 U.S.C. Section 106.

3 Software may be protected by a patent as well as by copyright. Whether a proposed use of software will infringe one or more claims of a patent is a much more complicated legal issue and is beyond the scope of this article.

4 These suggestions are not intended as guidance for the conduct of one's own software audit but rather are a starting point for locating information on the status of software programs generally.

5 17 U.S.C. Section 106.

6 17 U.S.C. Section 117. Limitations on exclusive rights: Computer programs

7 17 U.S.C. Sections 107, 108, 109.

8 The statutory factors include (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. See Fair use of copyrighted works for further discussion.

9 See the Agreement on guidelines for classroom copying in not-for-profit educational institutions with respect to books and periodicals for further discussion.

10 The Guidelines factors include brevity, spontaneity, cumulative effect, a proscription against anthology creation and a requirement that the original copyright notice be included in copied work. See Fair use of copyrighted works for further discussion.

11 17 U.S.C. Sections 504, 505.

12 17 U.S.C. Section 504(b).

13 17 U.S.C. Section 504(c).

14 17 U.S.C. Section 504(c)(2).

15 17 U.S.C. Section 505.

16 18 U.S.C. Section 2319.

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