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Copyright question

Crumbly Writer

Just saw something which intrigued me. In an online writer discussion about copyright, someone stated that "anyone who's published is automatically copyrighted, but only THOSE WHO HAVE FILED an official copyright with the copyright office can file for damages under the law".

I'm not sure whether that's legit or not. So far, I haven't seen any confirmation, and this is the FIRST I've heard of that claim. Of course, copyright laws vary by country, but I'm having trouble believing this. If it's the case, why would anyone NOT copyright every single thing they post anywhere?

Replies:   Switch Blayde
richardshagrin

Possibly because of the expense? Lots of countries, postage alone could be significant. If you need a lawyer or a translator or both the costs mount up. Did you copyright your post above, the one being replied to?

Replies:   Crumbly Writer
Ernest Bywater
Updated:

You should check with a suitable US lawyer who specialises in copyright. However, the copyright laws as applied in the country you create the work in are the ones that apply to your works, and the other countries who've signed the accords have to abide by those terms. Thus, the works I write are covered under the Australian copyright laws, despite them being distributed in the USA.

A couple of years ago I saw an article on the US Copyright laws that went into detail about the difference between the basic copyright and the copyright provided by the US Copyright Office. I can't remember much about it, because it didn't apply to me at all. However, I do remember thinking if I was in the US and was really concerned about the copyright being misappropriated there's an advantage to having it registered with the copyright office because it simplifies the proof of evidence in court, and the damages limit is higher if it's registered. Don't know if that's still the case, and to what extent.

I checked wikipedia and found this:

https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States

Quote

Statutory damages are available as an alternative to actual damages and profits. If the copyright was registered either (a) within three months of publication or (b) before the infringement, then the plaintiff is eligible to seek statutory damages. Statutory damages can be awarded by the court within the range of $750 to $30,000, but this can be lowered if the infringement is deemed inadvertent, or increased significantly if the infringement is willful.

Statutory damages are sometimes preferable for the plaintiff if actual damages and profits are either too small, or too difficult to prove, or both. There are, however, situations where statutory damages are not available. 17 U.S.C. § 412 provides:

Statutory damages are not available if the work is unpublished and the infringement began before the effective date of its registration.

Statutory damages are not available if the work is published but the infringement commenced after the first publication and before the effective date of its registration, unless registration is made within three months after the first publication.

end quote

Registration makes the claim for statutory damages easier, but doesn't affect the right for Monetary Damages (which are harder to prove and justify).

In short, if you think someone is going to make a good profit by ripping off your copyright you should register it to make suing their posterior off easier, but for most indie authors it isn't worth the time and trouble to do.

typo edit

Replies:   Dominions Son
REP

I looked into copyright requirements back in the 80's, when I was managing a technical writing group for my company. I wasn't seriously considering copyrighting anything at the time for the manuals we wrote were being written as part of a contractual effort for the US Government, so we wouldn't be eligible for copyright.

From what I recall, when a writer makes a work available to the public (i.e. publishes it in hardcopy or electronic medium) and indicates it is copyrighted, the writer gains certain rights to the work. If a second party publishes an identical the work or one with only cosmetic changes, the publication date is used to determine who owns the work.

The writer of a work is not fully covered under US Copyright laws until they submit a copy of the document to the US Copyright Office with the appropriate forms and fees. Theoretically, if you do not officially copyright your work, someone else can do so and legally they would own the work. You would then have to legally challenge the person claiming that the work is yours in order to regain ownership, and that is where the first publication date would have a bearing on who owns the copyright. There are also other factors in defining "earliest publication date", such as submission of a manuscript to a publisher.

That was many years ago, so I may have recalled the specifics incorrectly, or they may have changed.

Dominions Son

@Ernest Bywater

To add to Earnest's comment:

Statutory damages will often be larger than actual damages. And in fact if you publish a work available for free on a site like SOL, you could find that actual damages are $0, but if you register, statutory damages would still be available.

Here is a link to the US Copyright offices official information on statutory damages.

Crumbly Writer

@richardshagrin

Possibly because of the expense? Lots of countries, postage alone could be significant. If you need a lawyer or a translator or both the costs mount up.

That wouldn't account for why only filed copyrights ($35 per pop) could sue.

@Ernest
Thanks. It sounds like they (the person making the claim) was referring to Statutory damages (i.e. damages above what they technically 'stole in sales').

A copyright isn't that expensive, but at $35 x 15 books to date, that comes out to $525, about what I paid for my ISBNs, or what I pay in stock art per year.

Something to think about, and as usual, it takes an Aussie to explain American law to an American. :)

Dominions Son
Updated:

@Crumbly Writer


Thanks. It sounds like they (the person making the claim) was referring to Statutory damages (i.e. damages above what they technically 'stole in sales').


Actually, this is not quite true. In suing over a copyright violation, you can get actual damages or statutory damages(if registered) but you can't get both.

The big advantage of statutory damages is that it eliminates the need to prove actual damages which is particularly helpful in cases where actual damages are low or are difficult to prove.

Switch Blayde

@Crumbly Writer

"anyone who's published is automatically copyrighted, but only THOSE WHO HAVE FILED an official copyright with the copyright office can file for damages under the law"


First, as soon as you write something you own the copyright. You don't have to publish it. And you don't have to list the "copyright by".

I also heard people say you can only sue if you're registered with the US Copyright Office. But I think they mean it's easier to prove.

Replies:   Dominions Son
Dominions Son

@Switch Blayde

I also heard people say you can only sue if you're registered with the US Copyright Office. But I think they mean it's easier to prove.


That's correct. You can sue without registering the copyright, but then you are limited to actual damages.

Actual damages can be really hard to prove and may well be zero for something you made available on line for free.

Replies:   Crumbly Writer
Crumbly Writer

@Dominions Son

Actual damages can be really hard to prove and may well be zero for something you made available on line for free.

Not only that, but you're limited to sales lost to the copyright theft. If someone steals your book and publishes it on Amazon for $.99, or offers it on their website for free, not only is it difficult to get their sales figures, but your actual loss is MUCH greater than their 'give away' commission. For every book they give away, you're losing the full retail, not to mention the loss of your professional reputation as a legitimate author.

Replies:   Dominions Son
Dominions Son

@Crumbly Writer

Yep. Which is why registering your copyrights is important if you want to make money writing books. The major publishers have armies of lawyers and accountants to figure out actual damages, but they still generally register and almost never bother with actual damages.

From what I've read, it's fairly rare for actual damages to come out higher than statutory damages.

Ernest Bywater

@Crumbly Writer

Something to think about, and as usual, it takes an Aussie to explain American law to an American. :)


CW,

for more than thirties years a large component of my work has involved reading and interpreting legislation to apply it to what I'm doing, often in a regulation enforcement situation. SO I'm kind of used to working out the meanings of them. But I don't always get all the fine detail right.

Switch Blayde
Updated:

This is from the U.S. Copyright Office:


Do I have to register with your office to be protected?

No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section "Copyright Registration."


This must be where the "you need to get a copyright with the U.S. Copyright Office to sue" comes from. I don't know if this is true or not. Just because the U.S. Copyright Office says so, they aren't the courts.

ETA: I wonder if you can register right before filing suit. Maybe it's the first step in the suing process.

Dominions Son

@Switch Blayde

This must be where the "you need to get a copyright with the U.S. Copyright Office to sue" comes from. I don't know if this is true or not. Just because the U.S. Copyright Office says so, they aren't the courts.


That is sort of out of date. Technically, you do not need to register to seek actual damages. But the effort of proving actual damages is not worth the effort.

You do have to register to seek statutory damages which you don't have to prove and are generally higher than what actual damages would be.

Dominions Son

@Switch Blayde

I wonder if you can register right before filing suit. Maybe it's the first step in the suing process.


I've seen some sources that say yes, and some that say you don't have to register at publication, but to get statutory damages to have to register before the copyright violation happened.

Crumbly Writer

@Switch Blayde

I wonder if you can register right before filing suit. Maybe it's the first step in the suing process.

You can, but they also stipulate, you must file the copyright before any competing claims are filed against it. Thus, waiting until someone else publishes your book before you file is an invalid procedure. To protect yourself, you need to file before anyone violates your rights.

Crumbly Writer

So, given the difficulty in proving actual vs. statutory damages (and the prevalence of people stealing stories on sites like ASSTR), how many authors here would routines file the $35 fee for each of their stories in order to protect their works?

Dominions Son

@Crumbly Writer

how many authors here would routines file the $35 fee for each of their stories in order to protect their works?


I don't, but then I'm not trying to make any money off my stories so I don't care that much.

Any one who is selling e-book versions of their stories probably should be registering.

Ernest Bywater

@Crumbly Writer

how many authors here would routines file the $35 fee for each of their stories in order to protect their works?


Even if I was a US author, I wouldn't bother, unless I felt the story was going to be a fair sized hit bringing in several hundred sales or more in the first year. Luckily for me, I'm under Aussie law and I don't have to go through such a registration system, because the accords provide me with the same legal coverage in the US as I have in Australia - thus I can sue for damages in the USA in the exact same way as I do in Australia.

Replies:   Dominions Son
Dominions Son

@Ernest Bywater


Even if I was a US author, I wouldn't bother, unless I felt the story was going to be a fair sized hit bringing in several hundred sales or more in the first year.


The fewer sales you have the more likely statutory damages are to greatly exceed actual damages.

I have in Australia - thus I can sue for damages in the USA in the exact same way as I do in Australia.


Sure, for actual damages. But then you have to prove what your actual damages are.

Replies:   Ernest Bywater
Ernest Bywater

@Dominions Son

The fewer sales you have the more likely statutory damages are to greatly exceed actual damages.


But having low sales will also reduce what the judge will award, too. You also have to take into account the costs involved in taking it to court as it's a civil case.

I have the same access to damages in the USA as I do in Australia, regardless of where the breach occurs in the USA, because the works are covered under Australian copyright law - thus the level of proof stays the same. As best as I can tell from what I've read on the US law I need to be a legal entity within the US at the time the copyright is created to get coverage under the US law. This can be done by either writing the work while in the USA, or by contracting with a US based person or company to handle the work for me in the USA, and then they register it with the US Copyright Office because a new copyright-able version is created at the time of the contract. That's why there are some Sherlock Holmes stories still under copyright in the US while they're in the public domain in the rest of the world.

In short, if I contract with Blogs Publishing House USA to distribute the work they register it with the Copyright Office and it's covered by US copyright law. However, is all I do is commission Blogs Publishing House USA to print the books and ship them, they are not covered by US copyright law, but still covered by Australian copyright law since I'm paying a printer to print and issue an Aust copyrighted work - the printer's location is irrelevant.

One advantage under Aussie law is:

A copyright notice (©) is not required on a work to gain copyright, but only the copyright owner is entitled to place a notice. It is useful in publishing the date of first publication and the owner. Where a copyright notice is used, the onus in infringement proceedings is on the defendant to show that copyright does not subsist or is not owned by the person stated in the notice.

Dominions Son

@Ernest Bywater

But having low sales will also reduce what the judge will award, too. You also have to take into account the costs involved in taking it to court as it's a civil case.


Statutory damages are orders of magnitude higher that what your actual damages are likely to be and there is a per violation minimum of $200. Each pirated copy distributed is a separate violation.

And if the infringement is a large scale commercial operation, the minimum goes up to $130K per violation.

If it's "willful" you can get triple damages. It ads up fast.

I have the same access to damages in the USA as I do in Australia, regardless of where the breach occurs in the USA, because the works are covered under Australian copyright law - thus the level of proof stays the same.


If you register with the US Copyright office, you would have access under US law to Statutory damages for which you have no burden of proof beyond proving the violation itself.

A copyright notice (©) is not required on a work to gain copyright


The notice is not required under current US law either.

Crumbly Writer

@Ernest Bywater

One advantage under Aussie law is:

A copyright notice (©) is not required on a work to gain copyright, but only the copyright owner is entitled to place a notice.

The same is true in the U.S. Some time ago, I worried whether I could legally use the copyright symbol without registering the work, but that's not the case.

REP
Updated:

Okay, so you sue for actual or statutory damages.

The first thing you will have to prove in court is that you are the owner of the copyright. How do you plan to do that? Two people can both claim that they wrote their story in the same timeframe, but just stating that is not adequate proof in a court.

Ernest Bywater

@REP

The first thing you will have to prove in court is that you are the owner of the copyright.


That will depend on the actual laws involved, in some cases the plaintiff doesn't have to prove they own the copyright, the defendant has to prove they do. But that's where publication records come into play. It can get tricky if you publish under a pen-name.

sejintenej

@REP

The first thing you will have to prove in court is that you are the owner of the copyright. How do you plan to do that? Two people can both claim that they wrote their story in the same timeframe, but just stating that is not adequate proof in a court.

Why not deposit a copy with an independent acceptable body when you write it; in the UK that could be a solicitor or notary. A very few banks do this and there are safe custody companies in London. I know that in the US there are companies which do this in respect of films etc.
Should there be a problem then the holder can certify that you deposited the document of a specified date

Replies:   madnige
madnige

@sejintenej

Would posting a copy to yourself be a cheaper alternative? Either a printout of a short, or a CD of a longer work, kept by you in an unopened envelope (which you'll have put some identifiers on so you know what's in it) bearing a postmark which establishes a hard date. Only costs the postage if it's not required to substantiate a claim, and if it is required, then verified as unopened and date verified before being opened by or in the presence of an independent acceptable body.

Replies:   Switch Blayde  ustourist
Switch Blayde

@madnige

bearing a postmark which establishes a hard date.


I read many times that all you have to do is mail the manuscript to yourself and keep it unopened. The date of the postmark would be the proof.

Then I was told that will not hold up in court.

I was told if you show earlier drafts of your manuscript on your computer and even notes and research done it would suffice. Can someone change the computer generated dates of the files? If so, I don't know why it would prove anything.

ustourist

@madnige

Unless they have changed the system it would work in the UK with registered mail as the post office required a signature for receipt and the envelope/package was marked on all sides with a blue pencil as proof it was not tampered with. I used to do that with a lot of technical drawings prior to formal submission.
It was also accepted by the courts as proof in the delivery of legal documents, so had a track record of valid standing.
I don't think the USPS have a system that marks as not tampered with, though obviously they do have recorded receipt of mail.

awnlee jawking

@Switch Blayde

Then I was told that will not hold up in court.


It may depend on where you live. At a talk given many years ago by folks from the UK's Patents Office, they recommended the sealed, postmarked envelope method.

Can someone change the computer generated dates of the files?


Yes. But evidence of the change might be detectable by a forensic computer specialist.

AJ

Replies:   sejintenej
Ernest Bywater

@Switch Blayde

Can someone change the computer generated dates of the files? If so, I don't know why it would prove anything.


Yes, but not easy to do if you want to fool a good computer forensic person. What's better is to email a copy to another person. That will provide records of the email on the mail servers as well.

Crumbly Writer
Updated:

@REP

The first thing you will have to prove in court is that you are the owner of the copyright. How do you plan to do that? Two people can both claim that they wrote their story in the same timeframe, but just stating that is not adequate proof in a court.

If you publish it, the publication date is considered proof. If you didn't publish, then your posting it to a site like SOL (with a posting date) would also be considered proof (though you might have trouble if you modify the story and thereby change the posting dates on either the story as a whole or individual chapters)).

@Ernest

It can get tricky if you publish under a pen-name.

Again, Amazon should have records (i.e. your tax ID number for direct deposit), or SOL would have your original owner ID and a list of your pseudonyms you could supply the courts.

Really folks, this isn't that hard!

@sejintenej

I know that in the US there are companies which do this in respect of films etc.

One VERY reliable one is Bowker (in the U.S.), where you can store your original story text along with your assigned ISBN, so you could not only prove it was your, but also the date you first wrote it (instead of merely the publication date).

@madnige

Would posting a copy to yourself be a cheaper alternative? Either a printout of a short, or a CD of a longer work, kept by you in an unopened envelope (which you'll have put some identifiers on so you know what's in it) bearing a postmark which establishes a hard date.


That used to be a reliable method (150 years ago), but nowadays, it's not difficult to modify dates and text on a computer and save it to a different device to hide the system changes. Thus it's unlikely to hold up in court. It's also a simple matter to steam open the envelop and replace the original contents with something newer.

In these matters, you have to think like both a lawyer and a criminal.

@awnlee

Yes. But evidence of the change might be detectable by a forensic computer specialist.

Not necessarily, say if you transfer the document to another device, where it would create an all-new document without the system clues.

@Ernest

Yes, but not easy to do if you want to fool a good computer forensic person. What's better is to email a copy to another person. That will provide records of the email on the mail servers as well.


Your best bet is to mail it to a lawyer. They'd know not to open or tamper with it. Then it's his word it wasn't tampered with, and most lawyers aren't willing to lie on the stand for a client because they know if they got caught, they could never practice law again.

Replies:   REP
sejintenej
Updated:

@awnlee jawking


It may depend on where you live. At a talk given many years ago by folks from the UK's Patents Office, they recommended the sealed, postmarked envelope method.


This might not work in the UK now; many letters are not postmarked and postmarks (when they exist) are not dated.

The registered letter route might seem the better one now but I was taught how to get a letter out of an envelope without affecting the seal: that worked with a single sheet of paper but I wouldn't try it with more.
(That was in order to recognise the signs that it had been done!)

Ernest Bywater

Just checking an important US website:

https://copyright.gov/

https://www.copyright.gov/comp3/docs/glossary.pdf

Quote

Publication:
"'Publication' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication."

end quote

Replies:   Crumbly Writer  REP
Crumbly Writer

@Ernest Bywater

A public performance or display of a work does not of itself constitute publication.

Maybe not, but it does document that the work is yours, and the date it was first displayed. That's enough to counter any claims by someone attempting to plagiarize your work.

REP

@Crumbly Writer

It's also a simple matter to steam open the envelop and replace the original contents with something newer.


That may be true, however it assumes several things that may not be true:

1. If the glue joints were covered by clear 2" packing tape, the paper would probably deteriorate before the glue/adhesive releases.

2. People sometime sign their name across the glue joints. Steaming the letter open would cause the ink to run, and even if that doesn't happen, realigning the edges of the signature may be difficult.

REP

@Ernest Bywater

A public performance or display of a work does not of itself constitute publication."


The quote is an extract from 17 U.S.C. § 101, which expands on the meaning of a public performance or display.

The copyright right of a work, be it written, song, painting etc., belongs to the creator of the work. The essence of the quote regarding publication means that distributing, performing, and displaying a work does not prove the distributor/performer/displayer is the creator.

Replies:   ustourist
ustourist

@REP

The copyright right of a work, be it written, song, painting etc., belongs to the creator of the work.

That implies that an employee creating something holds the copyright, but hasn't it been established that something created during work time or on an employers equipment (even at home) belongs to the employer, even when it is done on break and not related to their employment skills.
Not totally sure on the accuracy of that situation as my information is from memory and media reports, not research.

REP

@ustourist

My employment contracts assigned anything I created to my employer if my creation was related to their area of business.

From what I recall:

1. If my creation was not related to my employer's line of business, then I owned the rights to my creation. For example, my company was involved in R&D Electronics and I wrote technical documents for them. If I had written a SF story, they would not have any rights to my creation.

2. If I offered a creation related to my company's line of business to my company and they were not interested in my creation, then I owned it and I received all rights to its use.

Crumbly Writer

@ustourist

That implies that an employee creating something holds the copyright, but hasn't it been established that something created during work time or on an employers equipment (even at home) belongs to the employer, even when it is done on break and not related to their employment skills.

Those rulings cover patents for physical inventions, not copyrights for creative content (by definition, a product of the mind). And just what 'work products' would someone use? Who brings home a typewriter from work? The days of companies buying their workers computers is gone, especially since, if they do, they typically track what you're doing while using it.

Years ago, I worked in the computer industry on Wall Street. If anyone could afford it, it would be them, and if programmers/developers had computers at home, they'd accomplish much more, yet I never received a 'work computer'. In fact, the only ones I know who do, are government workers. Do you really think a government office is going to try to submit a work to a traditional publishing company?

@REP

My employment contracts assigned anything I created to my employer if my creation was related to their area of business.

In what way are fictional stories related to anyone's 'area of business'?

awnlee jawking

@Crumbly Writer

The days of companies buying their workers computers is gone


That may be true where you are but it's not universal. I know many people who have company laptops, and they're expected to be able to use them at home if something needs their attention out-of-hours. Companies find it advantageous for their staff to all have compatible computers and software.

AJ

Dominions Son
Updated:

@Crumbly Writer


Those rulings cover patents for physical inventions, not copyrights for creative content


The work for hire doctrine covers both patents and copyrights.

The days of companies buying their workers computers is gone, especially since, if they do, they typically track what you're doing while using it.


I work for a consulting company that does corporate IT work. I have a company owned laptop.

Pretty much every corporate office worker in the US has a company provided desktop or laptop computer.

I used to work for (as a direct employee) a private electric utility. I still work with that company as a consultant. Everyone in the company has a company owned computer, even the linemen have company owned laptops.

Do you really think a government office is going to try to submit a work to a traditional publishing company?


No, but since the elimination of the need to register a copyright, every report, document and email generated by a corporation is copyrighted.

Do you have any idea the kind of havoc that could be caused if an individual employee could claim copyright ownership in reports a corporation is legally obligated to publish, such as shareholder reports and financial documents.

In what way are fictional stories related to anyone's 'area of business'?


They aren't, however, that hasn't stopped some companies from trying to claim such when the employees were writing them on company time/hardware.

ETA:
This tends to happen with software more often than with book manuscripts, either fiction or non-fiction.

Dominions Son

@awnlee jawking

That may be true where you are but it's not universal.


It's not even common. While there were trends in in that direction a decade ago, increasing demands by both customers and regulators for better corporate cyber security has caused a reversal of this trend and fewer companies are allowing non company controlled computers to connect to company networks.

sejintenej

@awnlee jawking

I know many people who have company laptops, and they're expected to be able to use them at home if something needs their attention out-of-hours.

My wife was PA to the head of IT in a major company. They were offered every program under the sun and, it being accepted that she could not assess each one in work hours, we had legal copies on our private home computer.
I had in a similar work problem and solution so I think at one moment we had five major word processing and four spreadsheet legal programs at the same time.
That was useful because I could write all my macros at home - an adjunct to my real job

Ernest Bywater

@ustourist

That implies that an employee creating something holds the copyright, but hasn't it been established that something created during work time or on an employers equipment (even at home) belongs to the employer, even when it is done on break and not related to their employment skills.


From the link I gave earlier, which is the official glossary of the US Copyright Office:

quote

Work made for hire: "A 'work made for hire' is

1. a work prepared by an employee within the scope of his or her employment; or

2. a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a 'supplementary work' is a work
prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements,
answer material for tests, bibliographies, appendixes, and indexes, and an 'instructional text' is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities."

end quote

Replies:   Dominions Son
Dominions Son

@Ernest Bywater

From the link I gave earlier, which is the official glossary of the US Copyright Office:


That's the way the law was written by congress.

However:

There have been cases of people trying to get a way with writing software, that they intended to make money off of, which would compete with their employer's business on work time and/or company owned equipment.

So the courts have been forced to deal with edge cases.

That left openings for unscrupulous companies to try and push things the other way, trying to claim ownership of things employees have done on their own time / equipment.

Such attempts have rarely been successful outside of egregious cases where an employee was trying to set something up to compete with their employer.

Generally unless your employer is a publishing house, literary fiction is probably safe from work for hire claims.

However, working on personal projects on company time / equipment, even if it doesn't cost you the copyright, can cost you your job, so I would recommend being diligent about separating personal for profit work from employment related work

REP

@Crumbly Writer

In what way are fictional stories related to anyone's 'area of business'?


They aren't. One of my companies was into direction finding and determination of a radio transmitter's location, so if I invented a way to lock onto a signal and accurately determine the transmitter's location, my company owned my invention.

Crumbly Writer

How does the copyright office define "publication" in regards to computer code? Every time software is updated? Every time someone patches some code? Whenever someone writes a partial script that he's already written dozens of times before?

I still have trouble wrapping my mind around copyright for technology. I understand it's needed to protect business interests, but it seems to fly in the face of protecting the original author of a 'work of art'.

Hell, chances are, if you've ever agreed to a software update without reading the next 30 pages of text on your phone, MicroShits probably own everything you've ever written anyway.

Ernest Bywater

@Crumbly Writer


Hell, chances are, if you've ever agreed to a software update without reading the next 30 pages of text on your phone, MicroShits probably own everything you've ever written anyway.


Apple put out a program to help people write and ready stories for use on Apple hardware, and one of the terms of the original version was you gave Apple permanent rights to whatever you wrote, and only they could give permission for it to be distributed for use on Apple hardware. I don't know if it's still in the terms or not, but it were when first released some years ago.

In most cases software is owned by the business paying the people to write it, unless someone wrote it all while not working for a company in that industry, then they own it.

Replies:   Dominions Son
Dominions Son

@Crumbly Writer

Hell, chances are, if you've ever agreed to a software update without reading the next 30 pages of text on your phone, MicroShits probably own everything you've ever written anyway.


Nope, much as MS might like to do that, copyright transfers must be in writing and specifically name the copyrights to be transferred. Unilateral contracts can not transfer copyright ownership

How does the copyright office define "publication" in regards to computer code? Every time software is updated?


The same way it's handled for non-fiction books that are printed in multiple editions with revisions between editions. Each edition is an entirely new copyright.

For patches published separate from the entire software package, the patch has it's own copyright and publication date.

Computer software is ultimately just machine readable text. Copyright protection works much better for software than patents.

In fact, software patents aren't even to be found in the text of the patent act. They are entirely a product of the Federal Circuit (a special appellate court create for patents and a few other specialized topics). SCOTUS has been pushing back against the Federal Circuit on software patents over the last few years.

Dominions Son

@Ernest Bywater

Apple put out a program to help people write and ready stories for use on Apple hardware, and one of the terms of the original version was you gave Apple permanent rights to whatever you wrote, and only they could give permission for it to be distributed for use on Apple hardware. I don't know if it's still in the terms or not, but it were when first released some years ago.


Yes, it's one thing you have to watch out for when developing software.

When using any compiler, bits of the compiler code becomes part of your program. This is even more true when using more advanced development kits, such as Apple's development kit for making iPone/iPad apps.

This makes your program a derivative work of the compiler/development kit. You still own the copyright in your app, but (to stick with your Apple example) you can't legally distribute the app without a copyright license from Apple.

Replies:   Crumbly Writer
awnlee jawking

@Dominions Son

Copyright protection works much better for software than patents.


Streetwise software companies take out patents on the algorithms they use in their computer programs. Not sure what use they are in certain far Eastern countries ;)

AJ

Replies:   Dominions Son
sejintenej

@Dominions Son

Nope, much as MS might like to do that, copyright transfers must be in writing and specifically name the copyrights to be transferred. Unilateral contracts can not transfer copyright ownership

When microcrap downloads software/updates you have to "agree" to their T and C

Dominions Son

@awnlee jawking

Streetwise software companies take out patents on the algorithms they use in their computer programs.


Yes, except per the patent act, mathematical algorithms (which is all a computer algorithm is) are explicitly excluded from patentable subject matter.

On top of that, the Fed Circuits rulings on various patent issues (not just software) have nearly read the novelty requirement out of the act by reducing prior are to just prior patents.

As a result, while there may be a few useful software patents out there, the vast majority of software patents fall into one of two patterns.

Where X=some method or process that has been well known for a very long time (centuries in a few cases)

1. Do X on a general purpose computer
2. Do X on the internet

Replies:   awnlee jawking
awnlee jawking

@Dominions Son

Yes, except per the patent act, mathematical algorithms (which is all a computer algorithm is) are explicitly excluded from patentable subject matter.


I've seen an office wall covered with plaques commemorating US patents for SQL queries the company used in its software.

AJ

Replies:   Dominions Son
Dominions Son

@awnlee jawking

I've seen an office wall covered with plaques commemorating US patents for SQL queries the company used in its software.


Yes, because the Fed Circuit decided that they knew better than Congress, what should be patentable. SCOTUS is starting to push back.

Crumbly Writer

@Dominions Son

Nope, much as MS might like to do that, copyright transfers must be in writing and specifically name the copyrights to be transferred. Unilateral contracts can not transfer copyright ownership

Tell that to all the sites that claim 'perpetual use of any content posted to the site'. They may not technically 'own' the copyright, but they can flood the market with imitation knockoffs without paying you a cent if you ever become phenomenally successful!

They inserted the clause so they can keep the piece on their site if you abandon it, but that's not how they crafted the language.

Crumbly Writer

@Dominions Son

This makes your program a derivative work of the compiler/development kit. You still own the copyright in your app, but (to stick with your Apple example) you can't legally distribute the app without a copyright license from Apple.

Technically, that's not the reason for the distinction. Every version of a book (print, amazon, epub, lulu, createspace) is treated as a separate entity and needs a separate ISBN. Thus you couldn't publish the Apple version anywhere else, regardless of what Apple did with it.

The text, however, is yours once you've published it. The format is something different entirely.

Replies:   Dominions Son
Crumbly Writer

@Dominions Son

SCOTUS is starting to push back.

That term always sounds like the official name for the President's balls. No offense to Hillary, though we'll never know since she never made it.

Dominions Son

@Crumbly Writer

Every version of a book (print, amazon, epub, lulu, createspace) is treated as a separate entity and needs a separate ISBN.


That has nothing to do with copyright.

The text, however, is yours once you've published it.


Yes it is yours, whether you publish it or not.

However, if it is derivative of another work the copyright of which is owned by someone else, you will need a license to that copyright to legally publish it at all.

Replies:   Crumbly Writer
awnlee jawking

@Dominions Son

I think SCOTUS doesn't understand what's involved in creating a mathematical algorithm. In some cases it can take more time and effort than writing a novel. But I have to admit to a personal interest in the subject.

AJ

Crumbly Writer
Updated:

@Dominions Son


That has nothing to do with copyright.

You're right. It has nothing to do with copyright. But it has everything to do with why you can't publish Apples version of your story to Amazon! Apple doesn't claim copyright of your words because you publish with them (at least, not after that initial dustup over their overly broad definition of their rights), they just don't want you using their software to prepare material for other sources, and neither does anyone else! (and Apple's limitations only apply to two specific pieces of software).


However, if it is derivative of another work the copyright of which is owned by someone else, you will need a license to that copyright to legally publish it at all.


That has never been Apple's position (their badly worded initial limitation notwithstanding). Instead, they're limiting how you can use the resulting product, not the test used within the product. Thus we're talking about two separate claims, not one unified copyright claim.

Dominions Son

@Crumbly Writer

Thus we're talking about two separate claims


Correct, you want to make it all about stories and I was addressing copyright issues with software.

Dominions Son

@Crumbly Writer

But it has everything to do with why you can't publish Apples version of your story to Amazon!


I was talking about apps(software), not stories.

Ernest Bywater

@Crumbly Writer

Tell that to all the sites that claim 'perpetual use of any content posted to the site'. They may not technically 'own' the copyright, but they can flood the market with imitation knockoffs without paying you a cent if you ever become phenomenally successful!


They don't take the copyright, just the limited right to permanently use it without paying you a cent or get further permissions. The way they usually word that part of their terms of use they even have the right to sell copies to other people and don't have to pay you any royalties for it at all.

Replies:   Crumbly Writer
Ernest Bywater

@Crumbly Writer

That has never been Apple's position (their badly worded initial limitation notwithstanding). Instead, they're limiting how you can use the resulting product, not the test used within the product. Thus we're talking about two separate claims, not one unified copyright claim.


When they first put out the program concerned they were asked about what the terms meant, and the Apple response was anything you created in that program could not be copied into an other program to be used elsewhere, nor could you publish it for sale etc. on Apple sites unless they approved. When pushed about it they said to use it anywhere else you needed to either create the original copy in another non-Apple program and then copy it into their software to create the version compatible with their system, or you had to retype it it into another program to use it elsewhere. You weren't allowed to do a copy - paste from the Apple software to another program.

The software was for creating and preparing books for use with various Apple systems and hardware, at the time they were trying to get people to use the software to create text books and other books on the software. The software only ran on Apple hardware, and so did the finished products. I wish I could remember the name of it, but it also did a number of things to help with book productions the way Scribus and such software does.

When I looked at it I was stunned they insisted anything you created from scratch in their software program had to be totally retyped into another program if you wanted to use it outside the Apple system. The only time I heard of anyone using the Apple software they copy and pasted from another program into the Apple program to create an Apple friendly version. It was available at apple for a while, but when Apple found out it was also available elsewhere for the same price they cut the price on it, and when he objected they removed it from their site. This was some years, so i don't know what the current state of the nation is with it, but since they did it then, I don't trust them about it.

Replies:   Crumbly Writer
Capt. Zapp

@Crumbly Writer

...'perpetual use of any content posted to the site'...
They inserted the clause so they can keep the piece on their site if you abandon it, but that's not how they crafted the language.


I disagree. They most likely put it in there so they could do just as you claimed, but they passed it off as what you want to hear. It's like the clause that says you have no right to take legal action against a company if using their 'whatever' causes damage to you (or your computer). I was looking at the T&C on something from Microcrud and it stated that the user could not sue for damages EVEN IF THEY KNEW there was a problem that could cause damage. Personally I do not think any company should be able to make you agree to give up even a portion of your right to seek compensation for damages, especially if the company knew about it!

This also brings to mind all the pharmaceutical lawsuits I keep seeing for drugs that have been on the market for just a few years. There should be a law that the FDA shares responsibility and liability for any product that proves to be dangerous and has been approved by the FDA.

Replies:   Dominions Son
Dominions Son

@Capt. Zapp

This also brings to mind all the pharmaceutical lawsuits I keep seeing for drugs that have been on the market for just a few years. There should be a law that the FDA shares responsibility and liability for any product that proves to be dangerous and has been approved by the FDA.


The problem is that all drugs, have a certain amount of risk. There is a big difference in level of risk that is acceptable for a drug to treat a terminal illness(AIDS, late stage cancer) and the level of acceptable risk for a drug to treat seasonal flu.

Take for example Thalidomide. A drug once used to treat morning sickness in women, resulting in severe birth defects.

It turns out Thalidomide is one of the best available treatments for leprosy (FDA approved 1998). It has also shown potential as an anti-cancer drug and an AIDS treatment. It was approved in 2006 as a treatment for multiple myeloma

There are no absolutes when it comes to safety, and always, risks must be measured against the potential benefits.

Another major problem with holding the FDA responsible for drug risks is that While the FDA might approve a drug only for specific uses, once it's approved for one use, doctors can prescribe that drug to treat anything.

The FDA, has at least some power to limit drug companies marketing drugs for off-label(unapproved) uses but the drug companies have been fighting against those restrictions for over a decade.

I can see holding the FDA liable for approved uses, but not for off-label uses.

Replies:   Capt. Zapp  sejintenej
Capt. Zapp

@Dominions Son

Take for example Thalidomide. A drug once used to treat morning sickness in women, resulting in severe birth defects.


I was actually referring to things like the Januvia birth control, the 'Ring' birth control, the various 'blood clot filters', and several other things that were 'new and safe' within the last five years. These are not cases of misuse, but of cases where the drugs were too dangerous. Heck, more than half of the 'possible side-effects' of modern medicines seem to be worse than what they are meant to treat! Sure, they are only 'possible', but if I take something for a headache I sure as hell don't want to end up with 'diarrhea, nausea, or vomiting' or worse.

Replies:   Dominions Son
Dominions Son

@Capt. Zapp

These are not cases of misuse, but of cases where the drugs were too dangerous.


Or a case of the FDA being too risk adverse.

Heck, more than half of the 'possible side-effects' of modern medicines seem to be worse than what they are meant to treat! Sure, they are only 'possible', but if I take something for a headache I sure as hell don't want to end up with 'diarrhea, nausea, or vomiting' or worse.


Risk is not just about how much harm if something bad happens, but how likely it is that the something bad happens.

Risk = probability times cost. Even if the cost is very high, risk will be low if the probability is very low.

Severe migraine headaches can be crippling.

Always, it is risk vs benefit.

90% probability crippling pain goes away vs 0.01% chance you will experience mild diarrhea.

Still not interested? I know people who would jump at that.

In my opinion, it's pointless to list all the known side effects of a drug absent any information on how likely each side effect is.

Replies:   REP
REP

@Dominions Son

it's pointless to list all the known side effects of a drug absent any information on how likely each side effect is.


I agree 100%. Furthermore, every problem the members of the study group experiences is likely to end up on the list of side effects. There may be no proof that the symptom was caused by the drug, but the risk of losing is high in a lawsuit if it is left off.

Crumbly Writer

@Ernest Bywater

They don't take the copyright, just the limited right to permanently use it without paying you a cent or get further permissions. The way they usually word that part of their terms of use they even have the right to sell copies to other people and don't have to pay you any royalties for it at all.

Legally, that's akin to claiming they possess a 'co-copyright', allowing them to publish your stories whenever they want, under any conditions they want. They don't revoke your copyright, but because you clicked 'accept' on a website, you revoked many of the protections in your copyright protection.

That sounds pretty similar to me.

Replies:   Dominions Son
Crumbly Writer

@Ernest Bywater

The software was for creating and preparing books for use with various Apple systems and hardware, at the time they were trying to get people to use the software to create text books and other books on the software. The software only ran on Apple hardware, and so did the finished products. I wish I could remember the name of it, but it also did a number of things to help with book productions the way Scribus and such software does.

Technically, the software wasn't 'writing' software as much as 'animation software', designed to bring 'content addition' to children's textbooks. Thus the software would pop up a dinosaur animation when discussing dinosaurs.

They weren't talking fiction at all (except for a few cases where someone might want to create a children's pop-up animated talking book, with the pop-up animations talking to the children).

The entire project mostly fizzled, and I've never heard much about it afterwards (i.e. I saw few, if any, books created using it).

My guess is, they saw a clear distinction between the two types of books and didn't want anyone trying to duplicate what they were offering on Google or Amazon (and thus they probably restricted 'copy & paste' functionality, rather than checked every book published to see if any of the text was covered in one of theirs).

Dominions Son

@Crumbly Writer

Legally, that's akin to claiming they possess a 'co-copyright'


No legally what they are doing is requiring you to give them a very broad, but non-exclusive copyright license in exchange for hosting what ever you post with them with no $ cost or royalty payments.

Most photo sharing sites do the same thing.

It's become fairly standard boiler plate, and it's one thing for amateurs not looking to make money using those sites.

But under no circumstance should you ever post a work to such a site if you want to make money off of it.

sejintenej

@Dominions Son

There are no absolutes when it comes to safety, and always, risks must be measured against the potential benefits.

I worked in West Africa "aka The White Man's Grave" when I was younger; there was only one drug available which gave any protection against malaria but it did an undeclared number on your memory! It is still available as a non-prescription drug in the UK and, I think, the USA.

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