A. INTELLECTUAL PROPERTY ENTITLED TO COPYRIGHT PROTECTION
(2) the claimed property rights are "equivalent to" the exclusive rights provided by federal
copyright law. Wainwright, 720 F.2d at 1225-26. The copyright act now precludes state
criminal prosecutions for acts of copyright infringement. In all instances criminal prosecution for
a copyright violation is possible only within the federal system.
(1) literary works;
(12) (2) musical works; (3) dramatic works; (4) pantomimes; (5) pictoral, graphic,
and sculptural works;
(13) (6) motion pictures;
(14) (7) sound recordings;
(15) and (8) architectural
(16) 17 U.S.C. § 102(a).
Table of Contents
Go to . . .
Return to .. CCIPS Home || Justice Home Page
9. Under usage of the time, "Science" was the subject matter of copyright, "Useful Arts" the subject matter of patents.
10. Prosecutors are advised to check the current status of 17 U.S.C. § 506 and 18 U.S.C. § 2319, the core criminal copyright statutes. At the time this manual was being prepared, Congress was considering several bills which would again amend the criminal copyright statute and its penalty provisions.
11. The federal preemption provision, 17 U.S.C. § 301(a), provides that:
12. " 'Literary works' are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied." 17 U.S.C. § 101. Computer software is protected as a "literary work." See Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1246-49 (3d Cir. 1983); 17 U.S.C. § 117.
13. " 'Pictoral, graphic, and sculptural works' include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans." 17 U.S.C. § 101.
14. " 'Motion pictures' are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any." 17 U.S.C. § 101. Video games are often treated as audiovisual works. See Atari Games Corp. v. Oman, 888 F.2d 878 (D.C. Cir. 1989); United States v. O'Reilly, 794 F.2d 613, 614 (11th Cir. 1986) (collecting cases).
15. " 'Sound recordings' are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied." 17 U.S.C. § 101.
16. "An 'architectural work' is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features." 17 U.S.C.
17. Twentieth Century has been superseded by statute on other grounds.
18. As a leading treatise on copyright law explains:
3 MELVILLE NIMMER, DAVID NIMMER, Nimmer on Copyright § 13.03[B] at 13-69 to -70 (footnotes omitted).
19. This dichotomy between idea and expression can be illustrated by an example. A playwright, like William Shakespeare, could copyright a particular work, Romeo and Juliet. That copyright would protect the playwright from direct theft of his work. However, the copyright would not give Shakespeare the exclusive right to use the concept of star-crossed lovers in plays or to exclude others from writing a play based on that idea. See PAUL GOLDSTEIN, Copyright's Highway, The Law and Lore of Copyright from Gutenberg to the Celestial Jukebox, 205 (1994).
20. 17 U.S.C. § 101 defines a "work made for hire" as "a work prepared by an employee within the scope of his or her employment."
21. Prosecutors should be aware that investigating and prosecuting computer software cases is fundamentally different from cases based on the more traditional copyright schemes, like those involving the illegal copying and distribution of copyrighted motion pictures and sound recordings. Many of these differences arise from the fact that computer software is reproduced and distributed in a digital, as opposed to an analog, recording format. Digital information can be reproduced, stored, and transported in ways that are qualitatively different from the ways we are accustomed to reproducing, storing, and transporting analog technologies.
22. Pub. L. No. 96-517, § 10, 94 Stat. 3028 (1980) (codified at 17 U.S.C. §§ 101, 117).
23. For an overview of some of the challenges of proof encountered in copyright litigation pertaining to computer software, see Ronald L. Johnston, Toward an Effective Strategy in Software Copyright Litigation, 19 Rutgers Comp. & Tech. L.J. 91 (1993). Particularly useful to criminal prosecutors and investigators are the author's discussions of detecting and proving infringement, id. at 103, and evidence of copying, id. at 107.
24. Source code is the original symbolic coding which programmers use to write computer programs. It is comprehensible to humans, but not to the computer that must execute it. Someone who steals source code can see how the program works and cannot only duplicate the program, but can modify it. The source code for a program can be also an extremely valuable trade secret.
25. Object code (also called executable code) is the form to which source code must be converted for it to be executed by a computer. It is comprehensible to computers but not to most humans. This is the form in which computer programs are sold or licensed to the public.
26. Another consequence of digital recording technology is that a binary string of 1's and 0's can be stored --and hence concealed -- in any number of electronic devices. More and more household devices are being built to provide electronic storage capabilities, such as computer, telephone, and television components. Digital storage technology, coupled with digital communications technology, make off-site storage of information not only a possibility, but a reality that must be accounted for in investigations. It may no longer be sufficient, in some investigations, to conduct a search of a suspect's home or workplace. It may also be necessary to gather information from remote computers to which a suspect is known to have access. See Federal Guidelines to Searching and Seizing Computers, Department of Justice, Computer Crime and Intellectual Property Section, July 1994.
27. Rental schemes, while often resulting in the proliferation of infringing copies for a commercial purpose, are nonetheless outside the reach of existing criminal statutes. See Computer Software Rental Amendments Act of 1990, 17 U.S.C. § 109(b)(1)(A) (prohibiting the unauthorized rental, lease or lending of legitimately purchased copies of a phonorecord or computer program); and § 109(b)(4) (declaring that violations of § 109(b)(1) "shall not be a criminal offense under section 506 or cause such person to be subject to the criminal penalties set forth in section 2319 of title 18.").
28. In contrast to the federal anti-counterfeiting statute, 18 U.S.C. § 2320, the federal criminal copyright scheme contains no exemption for "overrun" goods, that is, goods produced by a licensed manufacturer but produced in amounts exceeding the scope of the license. Thus, willful violations of contractual conditions may deserve consideration under the criminal copyright laws. Prosecutors, in such instances, should carefully scrutinize whether the infringing copies might have been produced as a result of an honest error, such as a disagreement arising from unclear licensing terms, in which case the infringement would not be "willful." See "The Elements of Criminal Copyright Infringement," infra,