The following discussion topics are provided as examples of the sorts of issues addressed by the Law Offices of Shelley M. Liberto. The materials presented below are not provided in the course of any attorney-client relationship, may not reflect the most current legal developments, and do not constitute legal advice. Readers are urged to contact the Law Offices of Shelley M. Liberto or other legal counsel to obtain adequate research and analysis of any particular legal issue before initiating any action or implementing any decision.

No. Common law copyright ownership attaches upon creation of the software. Registration of the software with the Library of Congress, however, provides the owner with a number of rights including the right to obtain relief under federal laws in the event of copyright disputes, infringement, or challenges to ownership. Registration is also prima facie evidence of ownership of the copyright, which means that any challenger bears the burden of proof of establishing different ownership. 

Can online providers be held liable for the infringing acts of their users who use a service to illegally copy and distribute protected material? 

No. Not unless they are aware of the infringing use. Internet service providers of "mere conduit" services, and of private or real-time electronic communications including e-mail and chat rooms, are liable for the infringing acts of the users only if: (1) They have actual knowledge of the infringing activity; and (2) fail to act within a reasonable time. 

Are contracts entered into on the Internet legally binding? 

Generally, yes. All that is required is some sort of unambiguous manifestation of the mutual assent of the parties to enter into a binding contract. This can be done through any electronic medium or otherwise. The Statute of Frauds, however, requires a signed writing under certain circumstances. 

What laws apply to commercial transactions over the Internet? 

Generally, the standard common law and a state's Uniform Commercial Code (UCC) apply to Internet transactions, although these laws do not fit comfortably with the new medium.  The National Conference of Commissioners on Uniform State laws is in the process of rewriting Article 2 of the UCC to apply to "virtual contracts" entered into on the Internet.  Click here to view the full text of the proposed "Internet Commercial Code".  Click here to view Ralph Nader's objections to the anti-consumer provisions of the proposed Code, set out in his letter to Bill Gates. 

Does the copying of software into Random Access Memory from a central processing unit without the software owner's permission constitute an infringement? 

Yes. The Ninth Circuit Court of Appeals has held that RAM is a "tangible medium" for copyright purposes and that downloading from a central hard drive into RAM violates the Copyright act. 

Does the copying of operating commands from someone else's software into your own constitute an infringement? 

Generally not. The Copyright Act excludes from protection "ideas, procedures, processes, systems, methods of operation, concepts, principles and discoveries." Courts deem "method of operation" to include utilitarian operating systems. 

How can I ensure that my employees and subcontractors will not use or disclose confidential source code information? 

Agreements for contractor and employment services should include provisions for protection of the owner's proprietary rights and confidentiality. In the case of software development services any agreement should make clear that the services call for providing the employer "works made for hire," otherwise the developer may lay claim to ownership of the product. 

How can I be sure the software that I market will be distributed into the proper channels? 

Any agreement for licensing and distribution of software should make clear that the software is "licensed and not sold". Licensing the product assures that the owner will retain full copyright ownership in the proprietary product, and allow the owner to control its distributorship downstream in the marketplace. 

If a licensee fails to pay royalties, does continued distribution of the software constitute a copyright violation? 

Yes. Once a licensee receives notice to cease copying and distribution due to delinquent royalties, any further use is without the owner's authorization and a violation of copyright law. 

How can I avoid going to court when disputes arise? 

Commercial agreements including software licensing and distribution agreements may be drafted to include mandatory arbitration clauses or mediation as a prerequisite to filing a lawsuit. Alternative dispute resolution proceedings such as arbitration and mediation allow for prompt and inexpensive means of resolving disputes, and also provide for preservation of the business relationship between the parties unlike litigation. On the other hand, unauthorized disclosure and distribution of a proprietary product may call for emergency injunctive relief that can only be provided by a court of law. 
 
Can I sue someone  in my own state court on a contract formed solely on email exchanges if that person lives in another state? 

In California you can.  A California Court of Appeal held in August of 1997 that California courts have personal jurisdiction over out-of-state defendants in suits involving virtual contracts entered into by email.  The court found sufficient "minimum contacts" with California, due to the "speed and ease" of email, to require out-of-state parties to appear and defend themselves in California. Communications by postal mail and telephone do not impose the same requirement. 

Are "Shrink-Wrap" license agreements enforceable in a court of law? 

Only in limited circumstances.  Contracts that cannot be fully performed within one year must be signed by the party against whom enforcement is sought. The perpetual nature of  the anti-copying and single-user provisions fall into this category, and are therefore unenforceable under a shrink-wrap license agreement.  Apart from the "shrink-wrap" provisions, however, the owner of the software is already protected from unauthorized copying and use under U.S. Copyright Law.