In 1993 worldwide illegal copying of domestic and Essay Example For Students

In 1993 worldwide illegal copying of domestic and Essay international software cost $12.5 billion to the software industry,with a loss of $2.2 billion in the United States alone. Estimates showthat over 40 percent of U.S. software company revenues are generatedoverseas, yet nearly 85 percent of the software industrys piracylosses occurred outside of the United States borders. The SoftwarePublishers Association indicated that approximately 35 percent of thebusiness software in the United States was obtained illegally, which30 percent of the piracy occurs in corporate settings. In a corporatesetting or business, every computer must have its own set of originalsoftware and the appropriate number of manuals. It is illegal for acorporation or business to purchase a single set of original softwareand then load that software onto more than one computer, or lend, copyor distribute software for any reason without the prior writtenconsent of the software manufacturer. Many software managers areconcerned with the legal compliance, along with asset m anagement andcosts at their organizations. Many firms involve their legaldepartments and human resources in regards to software distributionand licensing. Information can qualify to be property in two ways; patent lawand copyright laws which are creations of federal statutes, pursuantto Constitutional grant of legislative authority. In order for thegovernment to prosecute the unauthorized copying of computerizedinformation as theft, it must first rely on other theories ofinformation-as-property. Trade secret laws are created by state law,and most jurisdictions have laws that criminalize the violations of atrade-secret holders rights in the secret. The definition of a tradesecret varies somewhat from state to state, but commonly have the sameelements. For example, AThe information must be secret, Anot of publicknowledge or of general knowledge in the trade or business, a courtwill allow a trade secret to be used by someone who discovered ordeveloped the trade secret independently or if the holder does nottake adequate precautions to protect the secret. In 1964 the United States Copyright Office began to registersoftware as a form of literary expression. The office based itsdecision on White-Smith Music Co. v. Apollo , where the Supreme Courtdetermined that a piano roll used in a player piano did not infringeupon copyrighted music because the roll was part of a mechanicaldevice. Since a computer program is textual, like a book, yet alsomechanical, like the piano roll in White-Smith, the Copyright Officegranted copyright protection under the rule of doubt. In 1974, Congress created the Natural Commission on NewTechnological Uses (CONTU) to investigate whether the evolvingcomputer technology field outpaced the existing copyright laws andalso to determine the extent of copyright protection for computerprograms. CONTU concluded that while copyright protection shouldextend beyond the literal source code of a computer program, evolvingcase law should determine the extent of protection. The commissionalso felt copyright was the best alternative among existingintellectual property protective mechanisms, and CONTU rejected tradesecret and patents as viable protective mechanisms. The CONTU reportresulted in the 1980 Computer Software Act, and the report acts asinformal legislative history to aid the courts in interpreting theAct. In 1980 The Copyright Act was amended to explicitly includecomputer programs. Title 17 to the United States Code states that itis illegal to make or to distribute copies of copyrighted materialwithout authorization, except for the users right to make a singlebackup copy for archival purposes. Any written material (includingcomputer programs) fixed in a tangible form (written somewhere i.e. printout) is considered copyrighted without any additional action onthe part of the author. Therefore, it is not necessary that a copy ofthe software program be deposited with the Copyright Office inWashington, D.C. for the program to be protected as copyrighted. With that in mind then a copyright is a property right only. In orderto prevent anyone from selling your software programs, you must ask acourt (federal) to stop that person by an injunction and to give youdamages for the injury they have done to you by selling the program. The Software Rental Amendments Act Public Law 101-650) wasapproved by Congress in 1990, this Act prohibits the commercialrental, leasing or lending of software without the express writtenpermission of the copyright holder. An amendment to Title 18 to theUnited States Code was passed by Congress in 1992. This amendment. Known as Public Law 102-561 made software piracy a federal offense,and instituted criminal penalties for copyright infringement ofsoftware. The penalties can include imprisonment of up to five years,fines up to $250,000 or both for unauthorized reproduction ordistribution of 10 or more copies of software with a total retailvalue exceeding $2,500 or more. Under United States law duplicating software for profit,making multiple copies for use by different users within anorganization, and giving an unauthorized copy to someone else isprohibited. Under this law if anyone is caught with the piratedsoftware, an individual or the individuals company can be tried underboth civil and criminal law. A Civil action may be established forinjunction, actual damages (which includes the infringer=s profits) orstatutory damages up to $100,000 per infringement. The criminalpenalties for copyright infringement can result in fines up to$250,000 and a jail term up to five years for the first offense andten years for a second offense or both. When software is counterfeitor copied, the software developer loses their revenue and the wholesoftware industry feels the effect of piracy. All software developersspend a lot of time and money in developing software for public use. Aportion of every dollar spent in purchasing original software isfunneled back into r esearch and development of new software. Softwarepiracy can be found in three forms: software counterfeiting, which isthe illegal duplication and sale of copyrighted software in a formthat is designed to make it appear to be a legitimate program; Harddisk loading, whereby computer dealers load unauthorized copies ofsoftware onto the hard disks of personal computers, which acts as anincentive for the end user to buy the hardware from that particulardealer; and downloading of copyrighted software to users connected bymodem to electronic bulletin boards and/or the Internet. When softwareis pirated the consumer pays for that cost by new software and/orupgrade version being very expensive. Federal appellate courts in theU.S. have determined that operating systems, object code and softwarecotained in ROMs are protected by copyright, and some lower federalcourts have also determined that microcode (the instructions set onmicroprocessor chips), and the look and feel of computer screens issu bject to copyright protection. Which leads to the problems of thewidespread development of multimedia applications that has brought outmajor problems in clearing copyright for small elements of text,images, video and sound. The United States Government has been an active participant inprotecting the rights of the software industry. When the BusinessSoftware Alliance (BSA) conducts a raid, Federal Marshals or local lawenforcement officials participate also. An organization known as theSoftware Publishers Association (SPA) is the principal tradeassociation of the PC software industry. SPA works closely with theFBI and has also an written enforcement manual for the FBI to helpthem investigate pirate bulletin board systems and organizations(audits). With the help of the FBI, the result of enforcement actionsresulted in recoveries from anti-piracy actions totaling $16 millionsince the program started in 1990. Macbeth Essay SummarySPA has created a program that companies can use to helpdiscover and correct problems before they result in legal actions,fines and also negative publicity. The eight point program is asfollows:1. Appoint a software manager to implement and monitor all aspects ofcompany software policy. 2. Implement a software codes of ethics for everyone to adhere to. Theethics should state that copyrighted software, except for backup andarchival purposes, is a violation of the law. 3. Establish a procedure for acquiring and registering software. Determine your companies software needs, evaluate software packages,and also have supervisors approve the plans. Keep the lines ofcommunication open. 4. Establish and maintain a software log. The log should state thedate of when the software was acquired, the registration of it, serialnumber, network version, location of where the software is in use,where the original is, licensing agreement and the location of theoriginal disks. 5. Conduct periodic audits or on a as needed basis comparing thesoftware log and/or other purchase records. 6. Establish a program to educate and train your employees about everyaspect of software and its uses. 7. Maintain a library of software licenses and provide users withcopies of the agreement. 8. Having done the above seven points, the company can benefit byhaving obtained software legally, receive full documentation,technical support when needed and also upgrade notices. Patents do not cover specific systems, instead they coverparticular techniques that can be used to build systems or particularfeatures that systems can offer. Patent grants the inventor a 17 yearmonopoly on its use. Once a technique or feature is patented, it maynot be used in a system without the permission of the patent-holder even if it is implemented in a different way. Since a computer programusually uses several techniques and provides many features, it caninfringe many patents at once. A computer program is built out ofideal mathematical objects whose behavior is defined, not modeledapproximately, by abstract rules. An example of this is BorlandInternational, Inc. complained in the 1st Federal District Court gaveLotus Development Corp. the benefit of patent protection to Lotus1-2-3 menu commands and their order, but failed to require Lotus tomeet the requirements of patent law, including novelty, examinationand contribution to the prior art. The Supreme Court sided with the1st Circuit decision that one entity cannot own the user interface toprograms. Meaning such as file formats, menu structures andprogramming languages. Software license agreements emerged as the most popular meansof protection of proprietary rights in computer software. They coexistwith other forms of intellectual property rights as patent andcopyright. Software license agreements serve several functions intransactions involving the transfer of computer technology. One of themost important legal functions is the protection of the proprietaryrights of the licenser in the transferred software. Other functionsinclude controlling the revenue generated by licensed software anddetermining the rights and responsibilities of the parties regardingthe performance of the licensed technology. Issue related to thesefunctions include the applicability of Article 2 of the UniformCommercial Code, including offer and disclaimer of warranties,determining the appropriate types of licenses to utilize, such assingle users/CPU licenses, Site/enterprise licenses andnetwork/concurrent licenses. Trade secret, copyright and patent laware emailprotected forms of protection in the sense that they may existindependently of any underlying business transactions and do notnecessarily require any transfer of intellectual property from oneparty to another. Whereas, the need for a license agreement usually arises asone of the contractual forms of protection when the underlyingbusiness transaction involves the transfer of intellectual property,such as computer software. Transactions involving the transferof computer software are subject to both federal and state laws. Generally, state law governs contractual and trade secrets aspects ofthe transaction, while federal law governs aspects related to patent,copyright and antitrust issues. Each state has its own version of adoctrine of a trade secret, the common thread through thesestate-specific laws is that if you show that you are seriouslytreated information as confidential and that the confidentialinformation helped your competitive position, you can stop others fromusing it if the information was improperly acquired by them, and evencollect damages from the wrongdoers. A computer is useless without software. The two types ofsoftware typically found on a computer are operating systems softwareand application software. Operating system software providesinterface that makes it easier to develop programs for the system byreducing the amount of code that must be written. The operating systemacts as an interface between the computer hardware, applicationprograms and the end user. Application software consists of one ormore computer program that fulfill a specific function for the userlike word processing, bookkeeping or financial analysis. Two legalcases recently within the last few years has brought to light thecontroversy regarding the copyright protection of software elements. Until 1992, most of the federal courts followed the decision inWhenlan v Jaslow Dental Laboratory as a precedent of similar cases. Whenlan, a small software company wrote a accounting program forJaslow Dental Laboratory company. Jaslow rewrote the software to runon personal computers and proceeded to sell the product. The softwarewas identical to Whenlans in the data structures, logic, and theprogram structure, except for the source code. Jaslow argued that theduplicated elements were part by the of the idea not the expression. The court in response felt that the data structures, logic, and theprogram structure comprised to make a single function of a computerprogram, therefore copyright protection should be given to thoseelements also. In 1992, this protection was weakened by Computer Associatesv. Altai, Inc. , when Altai a software developer was accused ofcopying various modules of a software package developed by ComputerAssociates which controlled the running of applications on IBMmainframes. The court rejected Whelan=s premise that a computerprogram embodies one function because programs are made up ofsub-routines that contain their own idea. The court recognized thiswould narrow the scope of software copyright protection and found thisin accordance with Congressional intent of computer programs withcopyright. This resulted in why currently software copyright is not asbroad as it once was. BibliographyBrandel, William, Licensing stymies users,URL:http://www.viman.com/license/license.html#policy, VimanSoftware, Inc., 1994. Business Software Alliance, Software Piracy and the Law,URL:http://www.bsa.org/bsa/docs/soft_pl.html, Business SoftwareAlliance, 1995. Software Publishers Association, SPA Anti-Piracy Backgrounder,URL:http://www.spa.org/piracy/pi_back.htm, Software PublishersAssociation, 1995.