Whether you are a large or small developer, you need to worry about your software being ripped off. One way to fight back is to copyright your code. Do this and you are sitting in the catbird seat from a legal perspective.
Why copyright your software? To start, it is inexpensive. If you can figure it out on your own [which you can], the fee is as low as $35. Are you really such a tightwad that you won’t spend $35 to protect yourself? Even if you use an attorney, the cost is going to be in the hundreds of dollars at most in most cases. This cost is a small amount to pay for the massive benefits you gain under the Copyright Act.
There are many benefits to copyright, but three are of primary importance:
- You can sue to protect the software,
- You can recover statutory damages [big one], and
- You can recover your attorney’s fees.
Under copyright law, you must first register with the Copyright Office before you can file a lawsuit against the jerk or jerks that have ripped off all your hard work. A basic registration can take six months to a year. You can pay $700 or so to expedite the filing, but most people find it just slightly aggravating that they have to pay this fee just to gain the right to sue to protect their work.
One of the difficulties with copyright infringement lawsuits is proving the value of your loss. If someone copies part of your software and gives it away for free, they haven’t made any money so how do you determine damages? Different strategies can be tried, but there is a far better approach if you register your copyright in a timely manner – statutory damages.
Statutory damages represent a range of monetary damages a judge can choose from in a copyright infringement case. The amount ranges from $750 to $30,000 per infringement and up to $150,000 if the act is malicious. Given this, a person who swipes your code, uses it in another piece of software and then sells 1,000 copies would violate your copyright 1,000 times. The judge can then multiply this 1,000 number by whatever dollar amount between $750 and $30,000 he or she feels is appropriate. In short, a judgment of $750,000 to $30,000,000.
Wait. It gets better.
Attorney’s fees are an expensive part of any litigation, particularly in a copyright matter. Fortunately, a timely registered copyright also gives you the right to recover your attorney’s fees in an infringement case if you win. So, the defendant is left paying your attorney’s fee and damages, which constitutes a painful financial lesson.
One other step is required to gain the benefits of a copyright registration. You must file the copyright in a “timely manner.” Timely is defined as within three months of publishing the software in the public forum. To prevent challenges regarding whether a timely filing occurred, you should file as quickly as possible.
There is also a question as to whether software must be copyrighted before you can serve a takedown notice on the DMCA agent for a party alleged to have infringed on your copyright online. In truth, the question misses the point. If another party steals your code, the best course of action is to pursue a lawsuit against them because monetary damages can be substantial even if you don’t register in a timely manner.
Copyrighting software is the proverbial no-brainer. The cost is tiny, and the benefits are significant.
Richard A. Chapo, Esq.