Can you copyright software in the United States?

Software is the programs allow a computer to run useful operations. Without software computers are just a block of silicon and metal. A significant amount of time money and effort is put into creating software. Companies use database software to store records and individuals use game software for entertainment. Businesses that sell software have an interest in protecting the software from unauthorized copying. Can copyright be used to protect software from unauthorized copying in the United States?

The answer is yes, copyright law in the United States can protect software.

A copyright protects against the copying of original works of authorship fixed in any tangible medium of expression. Software is referred to as computer programs in United States Copyright Law and computer programs are considered literary works. Copyright protection is granted to an author when a work is fixed in any tangible medium of expression. A computer program is considered fixed in a tangible medium when it is stored on a hard drive or some other storage device that does not erase when it is turned off. When a software developer saves a computer program to a flash drive the software developer now has a copyright to the computer program. If the computer program was merely stored in the memory of the computer, the program is not considered fixed and there is no copyright, because if the computer lost power the program would disappear.

To file a lawsuit for copyright infringement in the United States the plaintiff must show that the copyright has been registered. The copyright registration process requires a copy of the work be deposited with the United States Copyright Office. This requirement would scare most software developers. Depositing a copy of the computer program with the United States Copyright Office might mean that competitors could learn how the program works. If the computer program is only used inside a company and not generally distributed, the company may not want to publish the computer program. But, there is no reason to fear those issues. Copyright protection is available for both published and unpublished works. Even if parts of a computer program are a trade secret, the copyright on the computer program can be registered. The United States Copyright Office only requires a portion of the source code be submitted and if trade secret material may be blacked out. It is possible to only submit object code, that is source code which has been reduced to instructions only a computer can read, but object code deposits are subject to Rule of Doubt. Because the United States Copyright Office is willing to black out trade secret information and only needs a few pages of source code it is best to submit source code to register a copyright on a computer program.

Copyright protection for a computer program extends to all of the copyrightable expression embodied in the program. This can include user manuals, music and images that are displayed in the computer program. Each element of a computer program that can be copyrighted should be registered.

It should be noted that Copyright does not protect the functional aspects of a computer program, such as the program’s algorithms, formatting, functions, logic, or system design. Copyright focuses on the expression of ideas, not the ideas themselves. A copyright on a program does not allow the copyright holder to prevent others from writing exactly the same program. An artist that paints a picture of a tree cannot claim the copyright to another artist’s painting of a tree.

Using copyright law to protect software is an effective way to ensure that the investment made in the computer program is protected from unauthorized copying.

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