Software Licensing In 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 code and software cotained in ROMs are protected by copyright, and some lower federal courts have also determined that microcode (the instructions set on microprocessor chips), and the look and feel of computer screens is subject to copyright protection. Which leads to the problems of the widespread development of multimedia applications that has brought out major problems in clearing copyright for small elements of text, images, video and sound. The United States Government has been an active participant in protecting the rights of the software industry. When the Business Software Alliance (BSA) conducts a raid, Federal Marshals or local law enforcement officials participate also. An organization known as the Software Publishers Association (SPA) is the principal trade association of the PC software industry.
SPA works closely with the FBI and has also an written enforcement manual for the FBI to help them investigate pirate bulletin board systems and organizations (audits). With the help of the FBI, the result of enforcement actions resulted in recoveries from anti-piracy actions totaling $16 million since the program started in 1990. The Software Publishers Association (SPA) funds a educational program to inform individuals and corporations about software use and the law. This program provides all PC users with the tools needed to comply with copyright law and become software legal. The SPA also publishes brochures free of charge about the legal use of software for individuals and businesses. Also available to help corporations understand the copyright law is a 12-minute videotape, which is composed of the most commonly asked questions and answers to them.
The video tape is available in French and Spanish and all together over 35,000 copies of the tape had been sold. SPA has also compiled a free Self-Audit Kit with which organizations can examine their software use practices. Included in the kit, is a software inventory management program designed to help an organization track their commercial software programs that are on all hard disks. The program searches PC hard disks for more than 1300 of the most common programs used in business. Also available is the SPA Software Management Guide which helps companies audit their current software policies, educate employees about the legal use of software, and establish procedures to purchase, register, upgrade and backup computing systems. The guide in addition also provides an Internal Controls Analysis and Questionnaire.
The guide also contains all of the SPA=s current anti-piracy materials. The U.S. software industry is facing the challenges of more sophisticated network environments, greater competition among software companies along with hardware manufacturers. At this moment more software than ever before is distributed on a high volume, mass marketed basis. There are many types of software out on the market and increasing every day. They range from graphical user interfaces for application programs such as mass-market spreadsheets, to more sophisticated technical software used to design integrated circuits.
The use of software plays a more vital role daily in our lives such as embedded software, which is critical to equipment in locations as a doctor=s office or an automotive shop. The instrument and devices found there depend more and more on software, because software provides the flexibility to meet the many different needs to the end user. As our lives our shaped and enhanced more by technology, there is already a greater demand that impacts the software industry. One of the main concerns of the software industry is how to deal with the issues of Asoftware [email protected] More and more customers want customized software suited for their business or personal need, and expect the software development firms to accommodate to their wishes.
The other side of this issue is that software development firms are concerned with unrealized revenue and excess costs in the form of software piracy, unauthorized use, excess discounts and lengthened sales cycles. For the customer and the software development firm, both have high administrative costs in regards to software programs. Software licensing policies were originally a result of software developers= need to protect their revenue base in the face of potential piracy. Product delivery for software is made up of a number of different components, which are referred to as Asoftware [email protected] The following factors are taken into consideration when determining a cost for a Asoftware [email protected]; physical delivery pricing, metric discounts, license periods support and maintenance, license management Tech support, change in use bug fixes and Platform Migration Product enhancements.
The most commonly found type of software license found in business is known as a , [email protected] license. There are four types of categories that are classified as a network license. Concurrent use licenses authorized a specified number of users to access and execute licensed software at any time. Site lice …