The following message was extracted from the Compuserve Programming forum on Tuesday, 2 October 1990. It would appear to be a rather important topic for those of us in the PC software/shareware/freeware/etc community. Please note that in the interests of clarity, several messages which are continuations of the first message have been combined and the intervening headers removed. #: 41298 S1/General Info [P] 02-Oct-90 01:36:57 Sb: #Dangerous Copyright Law Fm: Stephen Haynes 76236,3547 To: All I am posting this long message here and on other relevant sections to warn authors of shareware of a dangerous piece of federal legislation that has been passed by the House of Representatives as part of the Computer Software Rental Amendments Act of 1990. I tell you this from my position as a member of the Proprietary Rights Committee of the Information Industry Association and an attorney who represents West Publishing Company on intellectual property matters. These comments do not necessarily reflect the position of the IIA PRC, although they are also concerned that the legislation is illadvised. Essentially, the legislation proposes to throw under a degree of federal scrutiny and regulation all of computer "shareware." In addition, by its legislative history (about which more is said below), the House subcommittee that considered this legislation completely messed up what we differentiate as "shareware" and "freeware," and these definitions are likely to follow the legislation (if enacted) into court cases that may arise in the future. The relevant section (Sec. 105) has been passed by the House, but is not in the equivalent legislation pending before the Senate, so it could only be placed in the final bill by a conference committee. This is not good law, and should be opposed by all concerned with the free and unfettered development of shareware. Following is the text of the relevant portion of the proposed statute: SEC. 105 [of Computer Software Rental Amendments Act of 1990]. RECORDATION OF SHAREWARE. (a) In General.--The Register of Copyrights is authorized, upon receipt of any document designated as pertaining to computer shareware and the fee prescribed by section 708 of title 17, United States Code, to record the document and return it with a certificate of recordation. (b) Maintenance of Records; Publication of Information.--The Register of Copyrights is authorized to maintain current, separate records relating to the recordation of documents under subsection (a), and to compile and publish at periodic intervals information relating to such recordations. Such publications shall be offered for sale to the public at prices based on the cost of reproduction and distribution. (c) Deposit of Copies in Library of Congress.--In the case of public domain computer shareware, at the election of the person recording a document under subsection (a), 2 complete copies of the best edition (as defined in section 101 of title 17, United States Code) of the computer shareware as embodied in machine- readable form may be deposited for the benefit of the Machine-Readable Collections Reading Room of the Library of Congress. (d) Regulations.--The Register of Copyrights is authorized to establish regulations not inconsistent with law for the administration of the functions of the Register under this section. All regulations established by the Register are subject to the approval of the Librarian of Congress. The House of Representatives Subcommittee report (that establishes the "legislative history" of the statute), contains some even more unfortunate language. I have emphasized by all caps those portions I find are most troubling: Section 105.--Recordation of Shareware Section 105 of the bill -- which is uncodified -- authorizes the Register of Copyrights to record documents relating to shareware, to maintain current, separate records relating to such documents, and TO PUBLISH AT PERIODIC INTERVALS INFORMATION RELATING TO SUCH RECORDATIONS. The purpose of section 105 is to encourage individuals desiring to permit unrestricted, or liberal, use of software they create, to file documents to that effect with the Copyright Office so that an effective public record will be available. Subsection (a) authorizes the Register, upon receipt of a document designated as pertaining to computer shareware, to record the document and return it with a certificate of recordation. Such a document could include license agreements and statements that the author attaches conditions to the use or distribution of a computer program. Documents would be recorded under the fee structure in effect for other documents relating to copyright. For purposes of this section, shareware is computer software which meets the standard of originality in the Copyright Act but for which the author sets certain conditions for its use and distribution. THE COMMITTEE IS AWARE THAT THE TERMS "COMPUTER SHAREWARE" AND "PUBLIC DOMAIN COMPUTER SHAREWARE" ARE NOT FOUND IN THE COPYRIGHT ACT, AND ARE SUSCEPTIBLE OF DIFFERENT MEANINGS IN THE COMPUTER AND LEGAL COMMUNITIES. IT IS APPARENT THAT THERE IS A LACK OF A CENTRAL CLEARINGHOUSE FOR INFORMATION ABOUT SHAREWARE, AND THAT SUCH A CLEARINGHOUSE WOULD AID IN WIDER DISSEMINATION OF SUCH WORKS. The Register is given wide latitude to promulgate practices and procedures that fulfill the purposes of this section and also to obtain information -- prior to the "sunset" of this Title -- about an important manifestation of the creative computer community. Because of the different interpretations of the term shareware in the computer industry, it will be left up to the individual author submitting the document to designate it as pertaining to shareware. Failure to so designate the document will result in the document being recorded with the general copyright records. COMPUTER SHAREWARE DOES NOT INCLUDE ELECTRONIC DATA BASES, OR OTHER WORKS OF AUTHORSHIP. Subsection (b) provides the Register with authority to maintain current, separate records relating to the recordation of documents and to compile and publish at periodic intervals information relating to such recordations. Such publications shall be offered to the public at prices based on the cost of reproduction and distribution. In order to facilitate access to shareware, Title I of H.R. 5498 provides, in subsection (c) of section 105, that any individual recording a document pertaining to shareware MAY ALSO DEPOSIT TWO COPIES OF THE SHAREWARE AS EMBODIED IN MACHINE-READABLE FORM FOR THE BENEFIT OF THE LIBRARY OF CONGRESS' MACHINE- READABLE READING ROOM. The nature of the deposit is to be determined by the definition of "best edition" contained in section 101 of title 17, United States Code. Subsection (c) does not affect the mandatory deposit requirements of section 407 of title 17, United States Code, for computer software that is subject to copyright. Subsection (d) authorizes the Register to establish regulations in conformity with law for the administration of the functions of the Copyright Office. All regulations are subject to the approval of the Librarian of Congress. This proposed legislation is faulty or dangerous because: (1) registration need not be by the author, which means that any person can appear able not only to register with the Copyright Office, but deposit the shareware with the Library of Congress; (2) the Library of Congress will thus be engaged in activity (the collection of shareware) adequately performed by the private sector; (3) the sale by the Copyright Office of compilations of registered shareware is also a task better performed by the private sector; and (4) the statute's language completely confuses or states erroneously the nature of what it calls "public domain shareware," which we would probably refer to as freeware. I sincerely encourage each of you to write your Congressmen stating your opposition to this bill, should such provisions make it out of conference, and write your Senators stating your opposition and asking that the language not be added to the Senate version of the Computer Software Rental Amendments Act of 1990. Steve Haynes ÿ