Dedication to Public

>From Telecom Tech. Serv. Inc. v. Rolm Co., 388 F.3d 820, 832 (11th Cir. Oct. 21 2004) -- comments? The software in question was for private branch exchanges (PBXs), computers that direct telephone calls and data to private extensions. No dates for the copyright given in the case.

6. The Copyright Claim

The jury also found that the ISOs had illegally copied Siemens's software and distributed the software to customers without a license to do so. The ISOs now argue that this claim should not have been presented to the jury because the judge should have ruled that Siemens's software was in the public domain. The ISOs argue that Siemens failed to attach a copyright notice to each disk containing copyrighted programs, and, thus, these works entered the public domain. Although Siemens's software does not carry a copyright notice, the hardware containing the software does. Anyone seeking to copy the software would necessarily view the notice affixed to the hardware. The ISOs contend that this notification of copyright is insufficient under the Copyright Act, 17 U.S.C. § 401(a), which applies to publicly-distributed copyrighted work. [FN13]

FN13. § 401. Notice of copyright: Visually perceptible copies (a) General provisions. Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. (Emphasis added.)

We reject this argument and affirm the district court's holding. The jury found that the copyrights held by Siemens were valid. It could have reasonably reached this determination either by finding that Siemens issued its work in a limited publication (exempting it from § 401), or by finding that the work contained adequate notification. [FN14] Siemens presented sufficient evidence to support both of these theories. As such, we see no reason to disturb the jury verdict.

FN14. The district court noted, and we agree, that regulations relating to the Copyright Act permit some flexibility in how copyright owners must mark their protected works. See 37 C.F.R. 201.20(g)(4)(permitting copyright notice to be affixed to containers that are permanent receptacles for the software copies). Because different work is transferred or leased in varying forms of media, the best way to notify a user of the copyright protections may vary. Here, Siemens affixed copyright notices to hardware cards contained with the PBX system. Anyone who tried to copy the software would see these cards.

Pam Chestek Received on Tue Feb 15 2005 - 01:25:50 GMT