Don’t let a failure to register software codes and other works come back to haunt you.
In a recent significant decision, a U.S. federal appellate court for the First Circuit ruled against Airframe Systems, Inc., a software developer, in a case of copyright infringement against L-3 Communications Corporation.* This case should remind owners and creators of intellectual property to be diligent about regularly and timely registering original and modified versions of copyrightable works, as well as to retain archival copies of all registered works.
Airframe claimed that L-3 had copied and used the source code of Airframe’s proprietary software to develop a nearly identical program. When Airframe tried to prove its case by comparing L-3’s program to an unregistered 2009 version of Airframe’s software’s source code, the Court rejected Airframe’s argument. Further, even though Airframe had registered earlier versions of its software’s source code, Airframe could not show that L-3’s program was substantially similar to those registered versions because it had not kept archival copies!
Message for Best Practices:
Disputes over software ownership are on the rise. Copyright registration is far less costly and time-consuming than other forms of intellectual property protection such as patent protection. Moreover, copyright registration is a prerequisite to commencing an action and timely registration offers a copyright owner additional options for legal remedies such as statutory damages per infringement and attorneys’ fees.
Companies that develop software or other copyrightable materials, or that have an ownership interest in copyrightable materials, should take these simple steps to avoid Airframe’s mistakes and protect their copyrightable works:
- Proactive Protection: Timely register with the U.S. Copyright Office all original and modified versions of software (in source code and object code) and other copyrightable materials.A federal copyright registration provides for statutory damages and attorneys’ fees in a successful enforcement proceeding only if the work is already registered at the time infringement occurs or if the work is registered within three months after first publication. (First publication generally means when work is first made available to the public.) Federal registration is fairly quick and inexpensive (with fees starting at $25) and need not require the involvement of counsel once a registrant is familiar with the process.
- Archive in Anticipation: Keep copies of all registered materials. In the case of software, keep copies of both the source code and the object code.
- Limited Licensing: Licenses of software should preclude the use of source code.
* The case, Airframe Systems, Inc. v. L-3 Communications Corporation, was decided by the United States Court of Appeals for the First Circuit, a federal court with appellate jurisdiction over federal district courts in Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico.
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