As a software developer or a business owner, protecting your rights in your intellectual property is one of the most important things you can do. While copyright protection is technically automatic once your work is fixed in a tangible medium, if you have not registered your copyright with the U.S. Copyright Office, fighting a copyright infringement lawsuit is an uphill battle.
What does copyright protect?
Copyright protection is grounded in the language of the U.S. Constitution. Copyright protects an author’s right in its creation of an original work of authorship in a tangible form of expression, whether published or unpublished. This includes literary, musical, cinematic and artistic works, which covers a wide array of mediums, including poetry, architecture, and computer software.
When it comes to computer programs, copyright protects all of the copyrightable expression in the software but does not cover the functional aspects, like algorithms, formatting, functions, or system design. These functional aspects are protected by patent law. The line between what constitutes creative expression and what constitutes functionality is the heart of copyright law, and this nuanced area has been particularly apparent when it comes to the protection of software code under copyright law.
Why is copyright so important?
First and foremost, copyright protections protect your work from being infringed by others. Let’s assume that you have software code that is eligible for copyright protection, but you never got around to actually submitting the registration form to the U.S. Copyright Office. You are still protected by copyright law, as the protection is automatic once the work is fixed in a tangible medium. So far, there’s no problem.
However, it soon comes to your attention that someone is infringing on your copyright by using your software code. In order to protect your source code and your business, you decide to sue for damages due to copyright infringement. This is the point where you begin to run into problems because under federal law you are required to register your copyright claim before you can begin a lawsuit. The copyright registration process takes several months, with a current average of seven months for the process to be complete. Assuming you file your registration application immediately upon learning of the infringement of your software code, you may be waiting seven months or longer to file your lawsuit while the infringer continues to use your software code without permission.
Perhaps most importantly, your failure to register your copyright can greatly impact the number of damages you may be able to receive. Litigation can drag on for years, especially in a nuanced area like software copyrights. Oracle Inc. v. Google, one of the most impactful and watched software copyright cases of the last decade, has been dragging on for eight years and has recently been sent back by the Federal Circuit for a third trial. The longer the litigation takes, the higher your attorney’s fees will be.
This is where the next problem comes in. Under federal law, you will not be able to make a claim for statutory damages or attorney’s fees for (1) any infringement of the copyright of an unpublished work that occurred prior to the registration of the work, or (2) any infringement of the copyright of a published work that occurred after the first publication of the work and before the date of its registration, unless the registration is made within three months after the first publication of the work. This means, that unless you registered your copyright (or fall within the three-month exception), you will be unable to request attorney’s fees or statutory damages from the court. Under federal statute, statutory damages can be as high as $150,000.00 per infringement.
Without the ability to pursue statutory damages, you will have to prove actual damages. Actual damages are damages suffered by the copyright owner and any profits the infringer made based on the infringement. The problem is that proving the amount of actual damages can be very difficult, especially in a software case. Further, if you can only prove damages of $20,000.00 and your legal fees are $40,000.00, you end up winning the case but losing money.
The good news is that there is an easy solution to this problem: file your copyright as soon as possible. If you have concerns about whether your work is protected by copyright law, consult an attorney who will be able to guide you through the process.
*The information in this article is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Rozario & Associates, P.C. or the individual author(s), nor is it intended to be a substitute for legal counsel ] any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. For assistance with Intellectual Property related matters, please contact our office at firstname.lastname@example.org or 212-301-2770.
 U.S. Const. Art. I, § 8.
 U.S. Copyright Office, Circular 61: Copyright Registration of Computer Programs
 17 U.S.C. § 411 (2008).
 U.S. Copyright Office, Registration Processing Times, https://www.copyright.gov/registration/docs/processing-times-faqs.pdf.
 Sarah Jeong, Federal Circuit sends Oracle v. Google back for third trial, The Verge, (March 27, 2018), https://www.theverge.com/2018/3/27/17169064/federal-circuit-oracle-v-google-third-trial-java-android.
 17 U.S. Code § 412 (2008).
 17 U.S. Code § 504(c) (2008).
 17 U.S. Code § 504(b) (2008).