If you publish computer software, the single most important legal protection available to you is the federalcopyright law. But many software authors don't take advantage of its protections and risk findingthemselves at the mercy of infringers -- all because they don't send in a simple registration formas soon as the software is published.

Why the Automatic Copyright Isn't

Even if you don't put that little © on your work, you automatically get a copyright the instant your work ofexpression becomes fixed in a tangible medium. Theoretically, this means that you own the copyright, andno one may copy, distribute, display, or make adaptations of the work without your permission. So far, sogood.

The problem comes if someone infringes on your copyright. Then, suddenly, the protection is no longerautomatic. It's up to you to file a lawsuit in federal court and to convince the judge to order the other partyto stop the infringement and compensate you for your losses.

What's more, even though you own the copyright, you can't file your lawsuit unless you have registered thecopyright with the U.S. Copyright Office. Until you register, there's nothing you can do to stop theinfringement. You may be thinking, "Big deal -- I'll register if and when someone infringes on my softwareand I need to file a lawsuit." But if an infringement occurs, you'll want to register in a hurry so that you can fileyour suit -- and "expedited registration" costs several hundred dollars extra.

Statutory Damages

There is another -- even more compelling -- reason to register, and as soon as possible after the softwareis published: As a practical matter, if you haven't registered in a timely manner, it may not be worthwhilefor you to bring a lawsuit against an infringer.

Federal lawsuits usually cost a hellish amount of money in lawyer fees and litigation costs. This meansthat to make a copyright infringement lawsuit worthwhile, you must be able to pry a lot of money loosefrom the other party.

But it is often hard to show exactly how much monetary damage a copyright infringement has caused.So even if you can prove infringement, you may not be able to show much in the way of actualdamages. This means that you might end up spending $50,000 on legal fees but recover only $40,000 inactual damages. In other words, relying on the recovery of actual damages creates a substantial risk thatyou will lose money bringing the suit.

But if you registered the work before the infringement began or within three months of the date the workwas published, you may be entitled to recover the following from the infringer, in addition to your actual damages: your attorney fees and court costs, and "statutory damages" -- special damages of up to $100,000 per infringement -- without having to establish what damage you actually suffered.

Registration: Cheap Insurance

Not all the benefits of prompt registration relate to litigation. In fact, early registration can help keep youout of court. That's because an infringer who knows that you could recover substantial statutory damagesin court may be more willing to negotiate and settle out of court.

Since registration is so easy, costs only $30 per work, and provides significant benefits, it's one of thegreat insurance deals of all time.

Of course, if what you're publishing has no value to anyone but you, you may want to just place acopyright notice on the material and not bother to register. But in most situations, if your work is valuableenough to publish, it's valuable enough to register.

Registering a Copyright

Registering a copyright registration is a simple process; you don't need an attorney. All you need to do is to fill out a brief application form, which requires some basic information about the work, including:

  • The title of the work
  • Who created the work and when
  • Who owns the copyright

You send the application, a small fee (usually $30), and one or two copies of all or part of the copyrighted work to the U.S. Copyright Office in Washington, D.C. Copyright Your Software, by Stephen Fishman (Nolo), contains all of the necessary forms and step-by-step instructions for applying for copyright registration.

Copyright © 2000 Nolo.com Inc.

Published on: Nov 1, 2000