Editing Software copyright (section)

===United States===
Copyright protection attaches to “[[Originality|original works]] of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (17 U.S.C.A. § 102). Copyright functions by granting the author the right to exclude others.  Copyright protects:

* [[Literature|literary]] works
* [[Music|musical]] works (& accompanying words)
* [[Drama|dramatic]] works (& accompanying music)
* [[Pantomime|pantomimes]] and choreographed works
* [[pictorial]], graphic, & [[Sculpture|sculptural]] works
* [[motion pictures]] & other [[audiovisual]] works
* [[Sound recording and reproduction|sound recordings]]
* [[Architecture|architectural]] works
+ compilations and derivative works{{snd}} 17 USC § 103(a).

In the United States, computer programs are literary works, under the definition in the Copyright Act, {{UnitedStatesCode|17|101}}.<ref name="apple_v_franklin">[http://digital-law-online.info/cases/219PQ113.htm Apple v Franklin, 714 F.2d 1240 (3d Cir. 1983)]</ref>

There is a certain amount of work that goes into making copyright successful and just as with other works, copyright for [[Computer program|computer programs]] prohibits not only literal copying, but also copying of "nonliteral elements", such as program's [[structure, sequence and organization]].  These non-literal aspects, however, can be protected only "to the extent that they incorporate authorship in programmer's expression of original ideas, as distinguished from the ideas themselves."<ref name="altai">Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992)</ref> In ''[[Computer Associates Int. Inc. v. Altai Inc.|Computer Associates vs Altai]]'', the [[United States Court of Appeals for the Second Circuit|Second Circuit]] proposed the [[Abstraction-Filtration-Comparison test]] for identifying these protected elements. This test attempts to distinguish copyrightable aspects of a program from the purely [[Utilitarianism|utilitarian]] and the public domain.

Copyright attaches only to original works. A work is “created” when it is fixed in a “tangible medium of expression” for the first time. 17 U.S.C. § 101.  [[United States circuit court|Circuits]] differ on what it means for a work to be fixed for the purposes of copyright law and infringement analysis. The graphics, sounds, and appearance of a computer program also may be protected as an audiovisual work; as a result, a program can infringe even if no code was copied.<ref name="stern_v_kaufman">Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855 (2d Cir.1982)</ref>
The set of operations available through the interface is not copyrightable in the United States under ''[[Lotus v. Borland]]'', but it can be protected with a [[patent|utility patent]]. The law is unclear as to whether transient copies{{snd}} such as those cached when transmitting digital content, or temporary copies in a computer's [[Random-access memory|RAM]]{{snd}} are “fixed” for the purposes of copyright law.<ref>17 U.S.C. § 101. Compare Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 127 (2nd Cir. 2008).</ref>  The [[United States Court of Appeals for the Ninth Circuit|Ninth Circuit]] has held that “A derivative work must be fixed to be protected under the Act, but not to infringe.”<ref>Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965, 968 (9th Cir. 1992).</ref>  In ''[[Apple v. Microsoft]]'', the courts established that a [[look and feel]] copyright claim must demonstrate that specific elements of a user interface infringe on another work.  A program's particular combination of user interface elements is not copyrightable.

==== History ====
Historically, [[Computer programs and the Patent Cooperation Treaty|computer programs]] were not effectively protected by copyrights because computer programs were not viewed as a fixed, tangible object: [[object code]] was viewed as a utilitarian good produced from [[source code]] rather than as a creative work. Due to lack of precedent, this outcome was reached while deciding how to handle copyright of computer programs. The Copyright Office attempted to classify computer programs by drawing an analogy: the blueprints of a bridge and the resulting bridge compared to the source code of a program and the resulting executable object code.<ref name="sail_book">Lemley, Menell, Merges and Samuelson. ''Software and Internet Law'', p. 34</ref> This analogy caused the Copyright Office to issue copyright certificates under its [[Rule of Doubt]].

In 1974, the Commission on New Technological Uses of Copyrighted Works ([[CONTU]]) was established. CONTU decided that "computer programs, to the extent that they embody an author's original [[Creative work|creation]], are proper subject matter of copyright."<ref name="digitalcommons.law.ggu.edu">[http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1344&context=ggulrev Apple Computer, Inc. v. Franklin Computer Corporation Puts the Byte Back into Copyright Protection for Computer Programs] in Golden Gate University Law Review Volume 14, Issue 2, Article 3 by Jan L. Nussbaum (January 1984)</ref><ref name="sail_book"/> In 1980, the United States Congress added the definition of "computer program" to {{UnitedStatesCode|17|101}} and amended {{UnitedStatesCode|17|117}} to allow the owner of the program to make another copy or adaptation for use on a computer.<ref name="sail_book2">Lemley, Menell, Merges and Samuelson. ''Software and Internet Law'', p. 35</ref>

This [[legislation]], plus court decisions such as ''[[Apple v. Franklin]]'' in 1983 clarified that the Copyright Act gave computer programs the copyright status of literary works. Many companies began to claim that they "licensed" but did not sell their products, in order to avoid the transfer of rights to the end-user via the [[doctrine of first sale]] (see ''[[Step-Saver Data Systems, Inc. v. Wyse Technology]]''). These [[software license agreement]]s are often labeled as end-user license agreements ([[EULA]]s). Another impact of the decision was the rise of the [[Shrink wrap contract|shrink-wrap]] [[closed source]] business model, where before a [[source code]] driven software distribution schema dominated.<ref name="digitalcommons.law.ggu.edu"/><ref name="landley2009">{{cite web|url=http://landley.net/notes-2009.html |first=Rob |last=Landley |publisher=landley.net |access-date=2015-12-02 |date=2009-05-23 |quote=''So if [[Open-source software|open source]] used to be the norm back in the 1960s and 70s, how did this _change_? Where did [[proprietary software]] come from, and when, and how? How did [[Richard Stallman]]'s little utopia at the [[MIT AI lab]] crumble and force him out into the wilderness to try to rebuild it? Two things changed in the early 80s: the exponentially growing installed base of microcomputer hardware reached critical mass around 1980, and a legal decision altered copyright law to cover binaries in 1983.'' |title=notes-2009}}</ref>

In 1998, The United States Congress passed the [[Digital Millennium Copyright Act]] (DMCA) which criminalizes evasion of copy protection ([[Digital Millennium Copyright Act#Anti-circumvention exemptions|with certain exceptions]]), destruction or mismanagement of copyright management information, but includes a clause to exempt ISPs from liability of infringement if one of their subscribers infringes. In addition, the [[Digital Millennium Copyright Act|DMCA]] extends protection to those who copy a program for maintenance, repair or backup as long as these copies are "destroyed in the event that continued possession of the computer program should cease to be rightful."{{UnitedStatesCode|17|117}}

====EULAs and rights of end users====
The Copyright Act expressly permits copies of a work to be made in some circumstances, even without the authorization of the copyright holder.  In particular, "owners of copies" may make additional copies for archival purposes, "as an essential step in the utilization of the computer program", or for maintenance purposes.<ref name="sect117">{{UnitedStatesCode|17|117}}</ref> Furthermore, "owners of copies" have the right to resell their copies, under the [[first sale doctrine]] and {{UnitedStatesCode|17|109}}.

These rights only apply to "owners of copies."  Most software vendors claim that their products are "licensed, not sold",<ref name="doweownsteamgames">{{cite web|url=http://www.rockpapershotgun.com/2012/02/01/thought-do-we-own-our-steam-games/ |title=Thought: Do We Own Our Steam Games? |publisher=[[Rock, Paper, Shotgun]] |first=John |last=Walker |date=2012-02-01 |access-date=2014-12-27 |quote=I asked gamer lawyer Jas Purewal about this a short while back, not specifically about Valve, and he explained that the matter is still unresolved. “In fact,” he says, “it’s never been completely resolved for software generally[...]"}}</ref> thus sidestepping {{UnitedStatesCode|17|117}}.  American courts have taken varying approaches when confronted with these [[software license agreement]]s. In  ''[[MAI Systems Corp. v. Peak Computer, Inc.]]'', ''[[Triad Systems Corp. v. Southeastern Express Co.]]'', and ''Microsoft v Harmony'',<ref name="ms_v_harmony">Microsoft Corp. v. Harmony Computers & Elecs., Inc., 846 F. Supp. 208 (E.D.N.Y. 1994)</ref> various Federal courts held that "licensed, not sold" language in an [[End-user license agreement|EULA]] was effective. Other courts have held that "no bright-line rule distinguishes mere licenses from sales...The label placed on a transaction is not determinative".<ref name="vernor_v_autodesk">[http://www.citizen.org/documents/vernororder.pdf Vernor v. Autodesk, Inc., 555 F.Supp.2d 1164 (W.D.Wash. 2008).]</ref>  The Ninth Circuit took a similar view (in the specialized context of bankruptcy) in  [[Microsoft Corp. v. DAK Industries, Inc.]]<ref name="ms_v_dak">Microsoft Corp. v. DAK Indus., Inc., 66 F.3d 1091 (9th Cir. 1995)</ref>

By contrast, in the [[European Union]] the [[European Court of Justice]] held that a copyright holder cannot oppose the resale of a digitally sold software, in accordance with the rule of copyright exhaustion on [[first sale doctrine|first sale]] as ownership is transferred, and questions therefore the "licensed, not sold" [[End-user license agreement|EULAs]] in the EU.<ref>{{cite web|url=http://www.gamerlaw.co.uk/2012/the-legality-of-second-hand-software-sales-in-the-eu/ |title=The legality of second hand software sales in the EU |first=Jas |last=Purewal |publisher=gamerlaw.co.uk}} ([https://www.gamedeveloper.com/view/news/173538 mirror] on [[gamasutra.com]])</ref><ref>{{cite web|url=http://www.dw.de/dw/article/0,,16069323,00.html |title=Oracle loses court fight over software resale rules |quote=''A European court has ruled that it's permissible to resell software licenses even if the package has been downloaded directly from the Internet. It sided with a German firm in its legal battle with US giant Oracle.'' |date=2012-07-03 |access-date=2014-12-30 |author=hg/mz (AFP, dpa) |publisher=[[dw.de]]}}</ref><ref name="ecjforbes">{{cite web|url=https://www.forbes.com/sites/gregvoakes/2012/07/03/european-courts-rule-in-favor-of-consumers-reselling-downloaded-games/ |work=[[forbes.com]] |first=Greg |last=Voakes |title=European Courts Rule In Favor Of Consumers Reselling Downloaded Games |date=2012-07-03 |access-date=2014-12-30 |quote=''Could this be the victory we need for a “gamer’s bill of rights” ? DRM is an oft-cited acronym, and resonates negatively in the gaming community. The Court of Justice of the European Union ruled in favor of reselling downloaded games. Simply put, legally purchased and downloaded games will be treated like physical copies of the game, and consumers can then sell their ‘used’ game.''}}</ref><ref>{{cite web|url=http://curia.europa.eu/juris/document/document.jsf?docid=124564&doclang=en |title=JUDGMENT OF THE COURT (Grand Chamber) |date=2012-07-03 |quote=(Legal protection of computer programs — Marketing of used licences for computer programs downloaded from the internet — Directive 2009/24/EC — Articles 4(2) and 5(1) — Exhaustion of the distribution right — Concept of lawful acquirer) |publisher=InfoCuria – Case-law of the Court of Justice |access-date=2014-12-30}}</ref><ref>{{cite web|url=https://arstechnica.com/tech-policy/2012/07/top-eu-court-upholds-right-to-resell-downloaded-software/|title=Top EU court upholds right to resell downloaded software |author=Timothy B. Lee |date=2012-07-03 |publisher=[[Ars Technica]]}}</ref><ref>{{cite web|url=https://abcnews.go.com/Technology/wireStory/eu-court-oks-resale-software-licenses-16704351 |title=EU Court OKs Resale of Software Licenses |publisher=AP}}</ref>

====Fair use====
[[Fair use]] is a defense to an allegation of [[copyright infringement]] under section 107 of the [[Copyright Act of 1976]]. This section describes some of the uses of copyrighted software that courts have held to be fair.

In ''[[Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.|Galoob v. Nintendo]]'', the [[9th Circuit]] held that modification of copyrighted software for personal use was fair. In ''[[Sega v. Accolade]]'', the 9th Circuit held that making copies in the course of [[reverse engineering]] is a fair use, when it is the only way to get access to the "ideas and functional elements" in the copyrighted code, and when "there is a legitimate reason for seeking such access".

The [[Supreme Court of the United States|Supreme Court]] ruled in ''[[Google LLC v. Oracle America, Inc.]]'' (2021) that the reuse of [[application programming interfaces]] (APIs) including representative [[source code]] can be transformative and fall within fair use, though did not rule if such APIs are copyrightable.<ref>{{cite web | url = https://www.cnn.com/2021/04/05/tech/google-oracle-supreme-court-ruling/index.html | title = Supreme Court hands Google a victory in a multibillion-dollar case against Oracle | first = Brian | last = Fung |date = April 5, 2021 | accessdate = April 5, 2021 | publisher = [[CNN]] }}</ref>

====Copyleft====
{{Main article|Copyleft}}
A [[copyleft]] is a type of copyright license that allows redistributing the work (with or without changes) on condition that recipients are also granted these rights.<ref>{{cite web| url=http://www.fsf.org/licensing/essays/categories.html|title= Categories of free and nonfree software|publisher= www.gnu.org|access-date= 2011-10-29}}</ref><ref>{{cite web| url= http://www.fsf.org/licensing/essays/copyleft.html|title= What is copyleft? | publisher = www.gnu.org|access-date= 2011-10-29}}</ref>