Intellectual property law for software developers
So you have developed the next great software for personal or business computing, entertainment, bio-med, or some other type of web-based software (SaS). Obviously, if you are serious about your business, you will want to protect this software with federal copyright registration, or in some instances, trade secret protection. This blog talks about some of the trickier and more difficult issues in the somewhat complex area of federal copyright registration.
What are the benefits of federal copyright infringement
First of all, don’t cheap out and NOT register your software for copyright protection (unless you are seeking trade secret protection for your code). The cost of $45 is so minimal as to prevent no financial obstacle to registering your code, so if you are debating that, stop debating and contact an intellectual property lawyer to get started on the process. What the are “benefits” or perks to registering your copyrights under federal law?
1. You will get proof of ownership of the copyrights. If you are a startup software technology company, you may need to show venture capitalists and other investors that you have legal ownership of “proprietary” intellectual property rights. If you have ever watched Sharktank on television, you know this is something that the Sharks also want to see “do you have anything proprietary” they will often ask. With a federally registered copyright you can answer “yes” to your investors.
2. Registering your copyrights is a pre-requisite to filing a federal copyright infringement lawsuit – when you have a federal copyright, you can send a cease and desist letter to an infringer of your copyright (ex. someone who is copying, stealing, diplicating, disseminating, or otherwise misappropriating your software) and demand they stop what they are doing at risk of filing a federal copyright lawsuit. If you send proof of the copyright registration, they will have to take your lawsuit threat as credible.
3. If the offender will not stop their illegal conduct, filing a lawsuit is the only way you can stop them (by filing a lawsuit and seeking an injunction to stop the infringing conduct).
4. Registration of your software prior to bringing suit allows your company to seek: (a) statutory damages (which can be as high as $150,000 for willful infringement) or (b) attorney fees. Having the ability to seek these types of damages can be helpful in settling your software licensing dispute pre-litigation (which saves you time and litigation expenses).
In short, registration of a copyright at $45 ($700 for expedited) is one of the cheapest forms of insurance your company can buy, and this helps build your corporate “proprietary assets” list and makes you “lawsuit ready” to stop infringers that illegally copy and use your software code.
How to register your software
Here is a guide from the US Copyright website that will help you understand the forms to register your software code. If you need professional assistance, contact us by filling out the form below. Typically you can register “computer programs” which is a “set of statements or instructions” to be used directly or indirectly in a computer in order to “bring about a certain result.” You cannot protect ideas, program logic, methods, systems, concepts or layouts.
You need three things to register software copyrights:
1. Application form (you can register for visual arts works, performing art works (including motion pictures), literary works, sound recordings and single serials). Often literary works will be the appropriate form but this may vary depending upon the type of predominate authorship.
The form will require information about:
a. Who the author of the software is (for example are there co-authors)?
b. When the work was created (year of completion)
c. Material excluded / limitation of claim (ex. you are not claiming protection for certain public domain parts of your code)
2. Filing fee ($45 for normal registration and $700 for 1-3 week expedited service)
3. Non-retunable “deposit material” (ex. submitting a pdf or hard copy disk). You can upload these online or mail them in. IN general, if your software code is less than 50 pages, just include all pages (redacting any claimed trade secrets). If exceeding 50 pages, then include first 25 pages and last 25 pages and any page that might have the copyright symbol on it, if any. You can also include a user manual (which should be mailed in most cases).
This is only general legal information. The guide above has additional information.
How long does it take to get copyright approved?
Generally you are looking at a few months for basic registration service (1-4 months). For expedited service ($700) you may be looking at 1-4 weeks.
Do I register the original work and all new versions (ex. 2.0, 3.0, etc.)
The general rule of thumb in software registration is to file a new copyright application for each major new release. For example, if you are going from 1.0 to 2.0 or 3.0 to 3.1 version, then you want to file a new application each time. Keep your protection current. It is not cost or time prohibitive, so someone in your organization, or you can use our law firm to help you, can keep your registrations current. Minor bug fixes should probably not be registered, but then again, being overly cautious and conservative is never wrong either.
What if my employees or a contractor helped create the software are they owners?
Again, this is another tricky area in Copyright law and this needs to be examined at the outset of forming your software company and figuring out who the owners and holders of the copyright will be. In general, if your employees are generating the software code, this code will be owned by the employer under the “work for hire” doctrine. However, if you are hiring sub-contractors (ex. using Fiverr, Freelancer, ODesk or some other contractor website) you need to be very careful that they are “assigning” any and all copyrights to your company, otherwise, they may later make claim to being a co-author of the software (can you say COSTLY MISTAKE)!! Contact an intellectual property lawyer BEFORE you start developing your software, include us in your board room.
Contact a software law attorney
If you are forming a startup technology software company, creating web-based software, games, mobile applications, or other products using computer software code, get a software lawyer on your team at the EARLIEST possible stages. To wait until there is a question about infringement, or waiting until there are disputes between the partners of a software company is basically playing russian roulette. We have flexible legal fees and our copyright lawyers can help you get the protection and legal guidance you need. Call (877) 276-5084 or fill out the contact form below. We will get back to you normally within the hour.
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