Software Licencing

n 1993 worldwide illegal copying of domestic and international software cost $12.5 billion to the software industry, with a loss of $2.2 billion in the United States alone. Estimates show that over 40 percent of U.S. software company revenues are generated overseas, yet nearly 85 percent of the software industry's piracy losses occurred outside of the United States borders. The Software Publishers Association indicated that approximately 35 percent of the business software in the United States was obtained illegally, which 30 percent of the piracy occurs in corporate settings. In a corporate setting or business, every computer must have its own set of original software and the appropriate number of manuals. It is illegal for a corporation or business to purchase a single set of original software and then load that software onto more than one computer, or lend, copy or distribute software for any reason without the prior written consent of the software manufacturer. Many software managers are concerned with the legal compliance, along with asset management and costs at their organizations. Many firms involve their legal departments and human resources in regards to software distribution and licensing.

Information can qualify to be property in two ways; patent law and copyright laws which are creations of federal statutes, pursuant to Constitutional grant of legislative authority. In order for the government to prosecute the unauthorized copying of computerized information as theft, it must first rely on other theories of information-as-property. Trade secret laws are created by state law, and most jurisdictions have laws that criminalize the violations of a trade-secret holder=s rights in the secret. The definition of a trade secret varies somewhat from state to state, but commonly have the same elements. For example, AThe information must be secret, Anot of public knowledge or of general knowledge in the trade or business, a court will allow a trade secret to be used by someone who discovered or developed the trade secret independently or if the holder does not take adequate precautions to protect the secret.

In 1964 the United States Copyright Office began to register software as a form of literary expression. The office based its decision on White-Smith Music Co. v. Apollo , where the Supreme Court determined that a piano roll used in a player piano did not infringe upon copyrighted music because the roll was part of a mechanical device. Since a computer program is textual, like a book, yet also mechanical, like the piano roll in White-Smith, the Copyright Office granted copyright protection under the rule of doubt.

In 1974, Congress created the Natural Commission on New Technological Uses (CONTU) to investigate whether the evolving computer technology field outpaced the existing copyright laws and also to determine the extent of copyright protection for computer programs. CONTU concluded that while copyright protection should extend beyond the literal source code of a computer program, evolving case law should determine the extent of protection. The commission also felt copyright was the best alternative among existing intellectual property protective mechanisms, and CONTU rejected trade secret and patents as viable protective mechanisms. The CONTU report resulted in the 1980 Computer Software Act, and the report acts as informal legislative history to aid the courts in interpreting the Act.

In 1980 The Copyright Act was amended to explicitly include computer programs. Title 17 to the United States Code states that it is illegal to make or to distribute copies of copyrighted material without authorization, except for the user=s right to make a single backup copy for archival purposes. Any written material (including computer programs) fixed in a tangible form (written somewhere i.e. printout) is considered copyrighted without any additional action on the part of the author. Therefore, it is not necessary that a copy of the software program be deposited with the Copyright Office in Washington, D.C. for the program to be protected as copyrighted. With that in mind then a copyright is a property right only. In order to prevent anyone from selling your software programs, you must ask a court (federal) to stop that person by an injunction and to give you damages for the injury they have done to you by selling the program.

The Software Rental Amendments Act Public Law 101-650) was approved by Congress in 1990, this Act prohibits the commercial rental, leasing or lending of software without the express written permission of the copyright holder. An amendment to Title 18 to the United 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 of software. The penalties can include imprisonment of up to five years, fines up to $250,000 or both for unauthorized reproduction or distribution of 10 or more copies of software with a total retail value exceeding $2,500 or more.

Under United States law duplicating software for profit, making multiple copies for use by different users within an organization, and giving an unauthorized copy to someone else - is prohibited. Under this law if anyone is caught with the pirated software, an individual or the individual=s company can be tried under both civil and criminal law. A Civil action may be established for injunction, actual damages (which includes the infringer=s profits) or statutory damages up to $100,000 per infringement. The criminal penalties for copyright infringement can result in fines up to $250,000 and a jail term up to five years for the first offense and ten years for a second offense or both. When software is counterfeit or copied, the software developer loses their revenue and the whole software industry feels the effect of piracy. All software developers spend a lot of time and money in developing software for public use. A portion of every dollar spent in purchasing original software is funneled back into research and development of new software. Software piracy can be found in three forms: software counterfeiting, which is the illegal duplication and sale of copyrighted software in a form that is designed to make it appear to be a legitimate program; Hard disk loading, whereby computer dealers load unauthorized copies of software onto the hard disks of personal computers, which acts as an incentive for the end user to buy the hardware from that particular dealer; and downloading of copyrighted software to users connected by modem to electronic bulletin boards and/or the Internet. When software is pirated the consumer pays for that cost by new software and/or upgrade version being very expensive. Federal appellate courts in the U.S. have determined that operating systems, object