THE CASE FOR SOFTWARE VERSIONS, REGISTRATIONS AND RECORD-KEEPING

A recent case from the First Circuit underlines the utility, from a copyright perspective, of delineating versions of software, registering each version, and keeping copies. That is not always so easily done, because unlike other copyrightable works, such as a novel, software is never “done.” There is always another bug to fix, feature to add or compatibility issue to address. But to effectively employ copyright protection, it is a necessity.

The concern is proof. In order to prove infringement, the copyright owner must first prove what it is that is copyrighted, and that a copyrighted work was registered. That is generally simple enough, but with an evolving work, such as software, it becomes less so. That was the case in Airframe Systems v. L-3 Communications. In that case, Airframe accused L-3 of unauthorized copying of its software between 1997 and 2003.

The court’s opinion reports that Airframe had some pretty damning evidence, particularly a comment in the L-3 code that said “I do not know what this code is used for so I will leave it here anyway.” The problem was, Airframe did not have a copy of the software as it existed in those years and hadn’t registered a version during those years. Airframe attempted to prove infringement by comparing the L-3 code to an updated version of the Airframe software from 2009. The court held that without a copyright registration for the software as it existed during the years in question, and without a way of proving exactly which portions of the 2009 code were present in the version L-3 was accused of copying, Airframe could not prove infringement. The opinion reviews a number of cases in which copyright claims failed because of the plaintiff’s inability to prove the contents of the work allegedly infringed, and discuss the applicability of the best evidence rule in this context.

It seems that Airframe may not have registered any version of its software between 1988 and 2003. That is too long. Software developers and makers of other evolving works should anticipate the need to prove the state of their products at different times and take and register “snapshots” that will enable them to prevail when infringements come to light.
 

BETTER COPYRIGHT REGISTRATIONS REQUIRED IN THE INFORMATION AGE

Copyright owners may now be filing more copyright applications because district courts in New York, Arizona and Alaska have ruled that registration of a compilation does not suffice to register the individual works included in the compilation unless the individual works and authors are specifically identified on the application. For new works, copyright owners should now register new works individually in addition to registering the compilation, or specifically identify each work and author on the compilation application.  For works previously included in a compilation registration, but not specifically identified, copyright owners must either seek individual registration or supplement the original registration. Prior to the three recent decisions, the Copyright Office had permitted, and based in part on that policy courts had allowed, that a single registration for the compilation sufficed to register the individual works included in that compilation regardless whether the individual authors and works were specifically identified.

I see the recent decisions as a product of the information age. The established rule was one steeped in practicality. It was cumbersome for owners to prepare applications, and for Copyright Office employees to file and catalog them. Searching was cumbersome, because one had to go to the Copyright Office to look through the catalog and review hard copy files. Access to deposit copies was restricted. As a practical matter, few were actually searching, and it seemed wasteful to require more burden and paper when a single registration would suffice in many instances.

Now we can now store, and find, almost everything online. Instead of having to send a person to the Copyright Office to look at paper records, one is increasingly able to get information online. And we expect that. We want to be able to access and search all information all the time. Now that logistical impediments to discovering information are being removed, we won’t tolerate faulty inputs. In particular for those who want to license, and therefore benefit from fast and complete access to comprehensive information about prior art, the modification of behavior certain to result from recent court decisions is a boon.
 

How Fast Can I Sue?

If one discovers infringement of an unregistered copyrighted work, one needs to consider the forum of the potential infringement litigation to determine whether one can sue immediately after the Copyright Office receives the completed application, or must wait for the certificate to issue before suing.  The implications are obvious, particularly for one who wants to seek a TRO or preliminary injunction.

In Cosmetic ideas v. IAC/InteractiveCorp, the Ninth Circuit weighed in on whether the pre-litigation registration requirement in Section 411 of the Copyright Law requires that the Copyright Office actually register a work before one can sue for infringement, or it is sufficient for the completed application to have been received by the Copyright Office.  Courts have been split on this issue.  The Ninth Circuit opinion lists the courts in each camp.  Notably the Fifth and Seventh Circuits have held that submission of the application is sufficient, and the Tenth and Eleventh Circuits require issuance of the registration certificate. The Ninth Circuit held that submission of a completed application is all that is required.

Where this is likely to matter is in cases involving what one might call non-monetized copyrighted works, works that generally earn the author no direct revenue and therefore generally go unregistered, like this blog or maybe a sales brochure, flyer, catalog or Web page. It may not be worthwhile to register those as a matter of course, but if a competitor copies any of them, one might want to sue.