Code in the Courtroom

Tuesday Nov 19th 2002 by Dax Pandhi
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Code in the Courtroom

Hi there, fellow programmers!

Have you been ripped off? Nope, not by downtown muggings or get-rich-quick schemes. But rather by pirates and crackers just waiting to make your programming life a misery?

It's a sad fact of life, but when you get your application onto the Net, whether it's shareware of freeware, others may download it, crack it, pirate it, or just extract stuff from it to use in their own applications.

Do you want this to happen? Certainly not! So what can you do about it?

For our own safety, governments from around the world have signed treaties and passed acts to protect us from the illegal abuse of our creations. They are called the "Intellectual Property Laws".

And by the end of this article, you'll learn how you can enforce these laws by instantly creating your own copyright, registering a trademark or patent, and we'll even throw in your own license agreement to prevent you from any unsightly lawsuits.

WARNING: The information presented within this article is presented as a general guide to current legislation. It cannot be considered, under any circumstances, legal advice. The author nor Developer.com will accept no responsibility for the accuracy of this information. It is highly recommended you counsel with an authorised legal representative or Intellectual Property expert regarding the matters highlighted herein. Note that not all jurisdictions apply full intellectual property laws and that some laws may not apply to you.

Intellectual Property laws are certain set of rules that help you prove ownership and restrict unauthorized use of your creations. This aids in the fights against piracy, abuse and illegal use of your creations.

These laws apply to software, artwork, music, literary works, etc. and are used by almost everyone.

You must have noticed the standard "Copyright ©1996-200 Copyright Owner. All Rights Reserved" tag on software and other stuff. This is the notice that yells out to everyone - keep away!

But what exactly are copyrights?

Copyrights

Copyrights are the "thing" that you need most. Suppose you just finished a cool application, slap on the text somewhere saying "Copyright © %Year% %Your_Name%. All Rights Reserved."

For those that don't know, the © is typed by Alt+0169. The following are the accepted forms of the notice:

  1. Copyright © 2000 John Smith
  2. Copyright (c) 2000 John Smith
  3. Copyright (c) 2000
  4. (c) 2000

The © can be replaced by a (c) anywhere. This is mainly used (in software) where certain font's don't have the © symbol.

If you are revising/modifying your old creation, the notice should be like this:

Copyright © 1998-2000.

The main change is that the year of first copyright hyphenated with the year of revision.

As soon as you create your work, it is automatically Copyrighted by you, if - and only if - it is your original creation. Remade, retouched or modified works may or may not be capable of this. You should check with a legal specialist for such matters.

Now that you know you have this automatic copyright, you may as well make it public. Place it in an easy to find location such as the splash screen, about box, status bar and so on. As you are the copyright holder, you can set the rules by which licensees or users of your software will have to abide. This is called an EULA, or End-User License Agreement, which we will discuss a bit later.

If you are going to sell your software, it is highly recommended that you register your copyright. In the USA, contact the Patent and Trademark office at D.C. and ask for the appropriate forms. Fill the forms and send a copy of the software along with the required fee, which generally rounds up to $20 or so to the address you are told at the office. Within a few months or so, you will get an official notice that your copyright has been registered.

For other countries, the procedure is usually the same, thought the registration agency may be different. In some countries the procedure may take up to a year or more to complete. Once again, contact your legal advisor.

Trademarks

Trademarks are just like copyrights, but they don't apply to creations like art or software, they apply to names and terms.

If you create a company named Vulcan Developers, you can slap on a ™ or (tm) after it to specify your trademark. There are two signs of trademarks, ™ and ®. The first can be applied to any name you make up, which of course must be 100% original, not even a part of it should be existent beforehand. That is, if you create the name Vulcan Developers, and the word Vulcan has been trademarked already, then it is not completely legal. The latter sign ® can applied only when your trademark has been registered.

Simple word, which in legal terms "fall into the Public Domain", like Developer, Industries, Incorporated, etc cannot be trademarked alone. They need a word like "Greenbone" or such before or after it. Public domain based words, if tried to be trademarked, turn into a hefty fine or a heftier sentence - probably to jail!

To register a trademark, the same procedure of the copyright registration should be followed, but the form and address may differ. The fee of registration will get a bit more, as they differ from country to country, it can range from $20 to $80! The time to complete registration will probably take from 2 to 8 years!!

The notice for trademarks are like the following:

HorseWear™

HorseWear is a trademark of HorseClothes, Inc.

Or

HorseWear®

HorseWear is a registered trademark of HorseClothes, Inc.

Note that the ® is typed by Alt+0174 while ™ is typed by Alt+0153.

If you use the word "HorseWear" in your creation, but you don't own the trademark, you must specify it like this:

HorseWear is a trademark of HorseClothes, Inc. It is used for informative purposes only and with the interest of the trademark owner without any means of infringement.

I would tell you to counsel a legal advisor again, but I think you're smart enough to know that, right? Right!

Patents

Patents are the ultimate Intellectual Property laws. They apply to creations that have been "invented" not just created. You can patent software that uses a unique technique to store data. But you cannot patent software that just uses INI Files!

Patents are usually applied to software that communicates with hardware or that does new things. This gets really complicated and legal counseling is recommended.

Patent processes are considerably different and you'll need to contact the Patent Office or such to learn the procedures. This might take a considerable amount of time.

How long do they last?

Usually, patents last for 75 years or more. Copyrights last for as long as the author/copyright owner live plus 50 or so additional years. The same goes for trademarks.

EULA's, or End-User License Agreements are those things nobody reads! Yeah, this is the bunch of pages you are asked to read and abide by before installing a software. Researches show only 7% of people actually read these, whilst 48% abide by them.

As the copyright owner, you have to set the rules as to how users should use your software.

A typical EULA contains the following sections. The part in black text is the EULA, the part in red are explanations of the associated parts. Use this as your template:

NOTICE TO ALL USERS: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT ("AGREEMENT"), FOR THE LICENSE OF SPECIFIED SOFTWARE ("SOFTWARE") PRODUCED BY HORSECLOTHES INTERNATIONAL BV. ("HORSECLOTHES"). BY CLICKING THE ACCEPT BUTTON OR INSTALLING THE SOFTWARE, YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE BUTTON THAT INDICATES THAT YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT AND DO NOT INSTALL THE SOFTWARE. (IF APPLICABLE, YOU MAY RETURN THE PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND.) Here you define the terms or words that will be used later.

1. License Grant. Subject to the payment of the applicable license fees, and subject to the terms and conditions of this Agreement, HorseClothes hereby grants to you a non-exclusive, non-transferable right to use one copy of the specified version of the Software and the accompanying documentation (the "Documentation"). You may install one copy of the Software on one computer, workstation, personal digital assistant, pager, "smart phone" or other electronic device for which the Software was designed (each, a "Client Device"). If the Software is licensed as a suite or bundle with more than one specified Software products, this license applies to all such specified Software products, subject to any restrictions or usage terms specified on the applicable price list or product packaging that apply to any of such Software products individually. Here the software installation grounds are declared.

a. Use. The Software is licensed as a single product; it may not be used on more than one Client Device or by more than one user at a time, except as set forth in this Section 1. The Software is "in use" on a computer when it is loaded into the temporary memory (i.e., random-access memory or RAM) or installed into the permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that Client Device. This license authorizes you to make one copy of the Software solely for backup or archival purposes, provided that the copy you make contains all of the Software's proprietary notices. Here the usage rules are declared and user is given the freedom to create 1 and only 1 backup of the software for back-up purposes.

b. Server-Mode Use. To the extent such use is specified in the applicable product invoicing or packaging for the Software, you may use the Software on a Client Device or on or as a server ("Server") within a multi-user or networked environment ("Server-Mode") for either (i) connecting, directly or indirectly, to not more than the maximum number of specified Client Devices, or (ii) deploying not more than the maximum number of agents (pollers) specified for deployment. If no such maximum number is specified, this is a single product use license subject to subsection (a) above. A separate license is required for each Client Device or "seat" that may connect to the Server at any time, regardless of whether such licensed Client Devices or seats are concurrently connected to or actually accessing or using the Software. Use of software or hardware that reduces the number of Client Devices or seats directly accessing or utilizing the Software (e.g., "multiplexing" or "pooling" software or hardware) does not reduce the number of licenses required (i.e., the required number of licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware "front end"). If the number of Client Devices or seats that can connect to the Software can exceed the number of licenses you have obtained, then you must have a reasonable mechanism in place to ensure that your use of the Software does not exceed the use limits specified for the license you have obtained. This license authorizes you to make or download one copy of the Documentation for each Client Device or seat that is licensed, provided that each such copy contains all of the Documentation's proprietary notices. Here the use on a network (more than one copy is used) is restricted to some limit and is declared.

c. Volume Use. If the Software is licensed with volume license terms specified in the applicable product invoicing or packaging for the Software, you may make, use and install as many additional copies of the Software on the number of Client Devices as the volume license terms specify. You must have a reasonable mechanism in place to ensure that the number of Client Devices on which the Software has been installed does not exceed the number of licenses you have obtained. This license authorizes you to make or download one copy of the Documentation for each additional copy authorized by the volume license, provided that each such copy contains all of the Documentation's proprietary notices. Here volume usage is declared.

2. Term. This Agreement is effective for two (2) years unless you or HorseClothes terminates the Agreement earlier, in accordance with the terms set forth herein. This Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. When this agreement terminates, you must destroy all copies of the Software and the Documentation. You may terminate this Agreement at any point by destroying all copies of the Software and the Documentation. This section is needed if and only if the term (in years) is defined for usage of the software.

3. Updates. During the term of this Agreement, you may download revisions, upgrades, or updates to the Software when and as HorseClothes publishes them via its electronic bulletin board system, website or through other online services. Updates declaration. Simple enough!

4. Ownership Rights. The Software is protected by MyCountry copyright laws and international treaty provisions. HorseClothes and its suppliers own and retain all right, title and interest in and to the Software, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. You acknowledge that your possession, installation, or use of the Software does not transfer to you any title to the intellectual property in the Software, and that you will not acquire any rights to the Software except as expressly set forth in this Agreement. You agree that any copies of the Software and Documentation will contain the same proprietary notices which appear on and in the Software and Documentation. You declare your rights of ownership making you the "boss"!

5. Restrictions. You may not rent, lease, loan or resell the Software. You may not permit third parties to benefit from the use or functionality of the Software via a timesharing, service bureau or other arrangement, except to the extent such use is specified in the applicable price list, purchase order, or product packaging for the Software. You may not transfer any of the rights granted to you under this Agreement. You may not reverse engineer, decompile, or disassemble the Software, except to the extent the foregoing restriction is expressly prohibited by applicable law. You may not modify, or create derivative works based upon, the Software in whole or in part. You may not copy the Software or Documentation except as expressly permitted in Section 1 above. You may not remove any proprietary notices or labels on the Software. All rights not expressly set forth hereunder are reserved by HorseClothes. HorseClothes reserves the right to periodically conduct audits upon advance written notice to verify compliance with the terms of this Agreement. Restrictions are declared. Don'ts for the user!

6. Warranty and Disclaimer

a. Limited Warranty. HorseClothes warrants that for sixty (60) days from the date of original purchase the media (for example diskettes) on which the Software is contained will be free from defects in materials and workmanship. Limited Warranty. You may want to change the period.

b. Customer Remedies. HorseClothes' and its suppliers' entire liability and your exclusive remedy shall be, at HorseClothes' option, either (i) return of the purchase price paid for the license, if any, or (ii) replacement of the defective media in which the Software is contained with a copy on nondefective media. You must return the defective media to HorseClothes at your expense with a copy of your receipt. This limited warranty is void if the defect has resulted from accident, abuse, or misapplication. Any replacement media will be warranted for the remainder of the original warranty period. Outside the United States, this remedy is not available to the extent HorseClothes is subject to restrictions under United States export control laws and regulations.What to do in case of "bad" software copies.

c. Warranty Disclaimer. To the maximum extent permitted by applicable law, and except for the limited warranty set forth herein, THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING PROVISIONS, YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, HORSECLOTHES MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HORSECLOTHES DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE AND THE ACCOMPANYING DOCUMENTATION. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.Disclaiming what you don't warrant.

7. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL HORSECLOTHES OR ITS SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES. IN NO EVENT WILL HORSECLOTHES BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE LIST PRICE HORSECLOTHES CHARGES FOR A LICENSE TO THE SOFTWARE, EVEN IF HORSECLOTHES SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law. Where you are not legally responsible.

8. United States Government. The Software and accompanying Documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. This is as far as USA goes. Your countries information may be different. Skipping this section may not hurt.

9. Export Controls. Neither the Software nor the Documentation and underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of ) Cuba, Iran, Iraq, Libya, North Korean, Sudan, Syria or any other country to which the United States has embargoed goods; or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nations or the United States Commerce Department's Table of Denial Orders. By downloading or using the Software you are agreeing to the foregoing and you are certifying that you are not located in, under the control of, or a national or resident of any such country or on any such list. This is a regulation enforced by USA only. Other counties residents may not show this section.

IN ADDITION, YOU SHOULD BE AWARE OF THE FOLLOWING. EXPORT OF THE SOFTWARE MAY BE SUBJECT TO COMPLIANCE WITH THE RULES AND REGULATIONS PROMULGATED FROM TIME TO TIME BY THE BUREAU OF EXPORT ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERCE, WHICH RESTRICT THE EXPORT AND RE-EXPORT OF CERTAIN PRODUCTS AND TECHNICAL DATA. IF THE EXPORT OF THE SOFTWARE IS CONTROLLED UNDER SUCH RULES AND REGULATIONS, THEN THE SOFTWARE SHALL NOT BE EXPORTED OR RE-EXPORTED, DIRECTLY OR INDIRECTLY, (A) WITHOUT ALL EXPORT OR RE-EXPORT LICENSES AND UNITED STATES OR OTHER GOVERNMENTAL APPROVALS REQUIRED BY ANY APPLICABLE LAWS, OR (B) IN VIOLATION OF ANY APPLICABLE PROHIBITION AGAINST THE EXPORT OR RE-EXPORT OF ANY PART OF THE SOFTWARE. SOME COUNTRIES HAVE RESTRICTIONS ON THE USE OF ENCRYPTION WITHIN THEIR BORDERS, OR THE IMPORT OR EXPORT OF ENCRYPTION EVEN IF FOR ONLY TEMPORARY PERSONAL OR BUSINESS USE. YOU ACKNOWLEDGE THAT THE IMPLEMENTATION AND ENFORCEMENT OF THESE LAWS IS NOT ALWAYS CONSISTENT AS TO SPECIFIC COUNTRIES. ALTHOUGH THE FOLLOWING COUNTRIES ARE NOT AN EXHAUSTIVE LIST THERE MAY EXIST RESTRICTIONS ON THE EXPORTATION TO, OR IMPORTATION OF, ENCRYPTION BY: BELGIUM, CHINA (INCLUDING HONG KONG), FRANCE, INDIA, INDONESIA, ISRAEL, RUSSIA, SAUDI ARABIA, SINGAPORE, AND SOUTH KOREA. YOU ACKNOWLEDGE IT IS YOUR ULTIMATE RESPONSIBILITY TO COMPLY WITH ALL ANY AND ALL GOVERNMENT EXPORT AND OTHER APPLICABLE LAWS AND THAT HORSECLOTHES HAS NO FURTHER RESPONSIBILITY AFTER THE INITIAL SALE TO YOU WITHIN THE ORIGINAL COUNTRY OF SALE. This is again, a regulation enforced by USA only. Other counties residents may not show this section.

10. High Risk Activities. The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, "High Risk Activities"). HorseClothes expressly disclaims any express or implied warranty of fitness for High Risk Activities. This unusual section may be needed by your software. It is not usually seen in other EULA so you may consider it as "optional".

11. Miscellaneous. This Agreement is governed by the laws of the MyCountry and the State of MyState, without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This Agreement sets forth all rights for the user of the Software and is the entire agreement between the parties. This agreement supersedes any other communications with respect to the Software and Documentation. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of HorseClothes. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by HorseClothes or a duly authorized representative of HorseClothes. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. The parties confirm that it is their wish that this Agreement has been written in the English language only. HorseClothes may identify you as a customer of HorseClothes and describe in a mutually agreeable Customer Case Study the services and solutions delivered by HorseClothes to you. HorseClothes may also issue one or more mutually agreeable press releases containing an announcement of the execution and delivery of this Agreement and/or the implementation of the Products by you. No such document or release shall include any information considered Confidential by you. Your approval to any such document or release shall not be unreasonably withheld and shall be deemed given unless you indicate otherwise in writing within ten (10) days of delivery of the proposed document or release. Blah-Blah-Blah. Miscellaneous stuff that is easy to understand.

12. HORSECLOTHES CUSTOMER CONTACT. If you have any questions concerning these terms and conditions, or if you would like to contact HorseClothes for any other reason, please call ######, fax #####, or write: HorseClothes International BV., 25, 1043 GL Town, Country. http://www.horseclothes.com Give your customers your contact info, just in case...

The above license agreement is meant to serve as an outline for you. If you make your own EULA, using the above as a template or now, it is wise to show it to an Intellectual Property Specialist before enforcing the it.

You may want to refer to other EULA from the software you already own for reference. The Visual Basic or Visual Studio EULA from Microsoft is an excellent reference.

Other neat EULAs can be found in products from Corel, Adobe, WinZip, QuickTime and ICQ.

What if you find someone who breaks the rules and alters your program or pirates your software? The following will offer you some constructive steps for going after the person who broke the law:

  1. As soon as you find out there has been a breach of the End-User License Agreement, contact your legal attorney
  2. As per the case, your attorney will be able to help you build a case of the matter and charge the culprit with either Civil Penalty (as appropriate), Criminal Penalty or both! The charge are based on Copyright/Trademark/Patent infringement. (Breach of EULA is considered infringement of copyright/trademark/patent as applicable)
  3. Your "criminal" will receive summons from the court and follow the appropriate procedure(s)

Your attorney will shed more light on the matter mentioned above. Potentially, the guilty party can be sued or fined and in some extreme cases, jailed. Pirated software usage/creation can end up with fines of 10 times the current software price and/or 2 or more years in prison.

Of course, you must do everything very, very carefully. You might end up being sued instead!!

Things to NOT Do

  • Don't register anything if you are using pirated software yourself!
  • Don't register any trademarks that already exists. You might end up in a 8 year lawsuit with a mighty fine that will make you sell your house and office!
  • Don't patent anything unless you're 100% sure it is appropriate patent (example: GetRight patented its technology of resumable downloads because it was unique technology)
  • Don't go around registering and enforcing laws on people without a legal counselor beside you. One must be hired before and not after filing a lawsuit!
  • And for you extremists, don't ever go as your own legal representative!

Wasn't it fascinating learning cool stuff about copyrights, patents, trademarks, License agreements and <heh-heh> suing people! Well, you are one more step closer to fighting piracy and protecting yourself and your software.

So go slap a copyright notice on your software and be protected!

- Dax Pandhi

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