Re: Deposit requirements for software copyright registration

Steve Timmer <stimmer[_at_]planetlawyers.com> wrote:
>
> I am confused about the current state of the deposit requirement for
> computer software. There are a couple of publications on the Copyright
> Office website; one outlines the deposit of portions of source code and
> warns against the deposit of object code only; the other speaks of the
> deposit of object code as though that was the regular way to do it. I
> always understood that the first way mentioned was the way it had to be
> done, although software authors are understandably reluctant to deposit
> source code.

Actually, the requirements are fairly easy. There are three methods:

1. You may deposit the entire source code.
2. If there are trade secrets in the source (often the case) you have two choices: (a) deposit the first 10 and last 10 pages of source code without redaction; or (b) deposit the first 25 and last 25 pages of source code with redaction. With this method, there are three additional requirements: (a) you must provide a cover letter stating that the code contains trade secrets; (b) the first page must include the copyright notice; and (c) if you provide redacted code, there must be substantially more visible than is obscured (most people take this to mean that the redacted portion must be less than 50%).
3. You may deposit object code in lieu of source code but you do so under the Rule of Doubt, which means that a Registration Certificate will issue but it does not carry the legal presumptions that it would normally carry. Essentially this means you've got your ticket into federal court but will have to prove authorship, copyrightability, etc.

In regard to method 2, as a former programmer who worked primarily with object-oriented languages, I ended up calling the CO about the "first .... and last ..." requirement. Most programs of any size consist of multiple source files (compilation units). Furthermore, many modern languages support data abstraction and allow you to divide compilation units into specifications (header files, Ada package specs, etc.) which are visible to other compilation units and the implementation of those specifications (.c or .cpp files, Ada package bodies, etc.). Rarely is a computer program of any complexity contained in a single source file.

This begs the question "What constitutes the first 10 (or 25) and last 10 (or 25) pages of a computer program deposit?" Is the the first 10 (or 25) and last 10 (or 25) pages of EACH file or compilation unit? Is it based upon the order of compilation? The order of execution? And what about files that in languages like C and C++ are included by the compiler preprocessor?

The answer, however, is quite simple according to the Copyright Office. It is up to the author as to what constitutes the first 10 (or 25) and last 10 (or 25) pages of the source. So now I just stack the listings in whatever order reveals the least amount of trade secret material, usually headers on top and implementation files last and then take first and last pages required. Often this means I can file the first 10 and last 10 without redaction.

Stephen J. Hyland
<shyland[_at_]computer-lawyer.com> Received on Wed Mar 11 1998 - 14:40:51 GMT