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What is Derivative Work & How Can it Affect My Software?

Posted by Adam Blaier | May 28, 2019 | 0Comments

U.S. Copyright laws can protect an original software creation, but infringers still exist, and you may need to take legal action against them. On the other hand, you may inadvertently created a derivative work that infringes someone else's software copyright. 

The Law Office of Elliott J. Brown can show you how derivative works, copyright law, and open source licensing works in conjunction with each other and help you potentially avoid costly legal mistakes. 

Software Copyright Protection

Section 101 of The Copyright Act defines a computer program as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." However, Section 102(b) notes: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

When federal courts consider copyright infringement for software, they must be careful not to extend copyright protection to un-copyrightable elements. 

Software Derivative Works

A derivative work is a new, original work based upon existing original work. In software and computer programs, this includes original lines of code. Creating a software derivative work involves modifying the source code of an existing computer program either by revising it or translating it into another computer language. Simply linking to the existing original code in a library program without modifying it does not create a derivative work. Using a plug-in or a device driver also does not create a derivative work, even if you look at the program's source code to determine how to use the plug-in or device driver.

Computer code is complex and creating a derivative work extends beyond copying a large portion of the original source code. A derivative work may use the code's structure, organization, sequence, or architecture rather than a literal source code copy. If you are the owner of the original work, you can make as many derivative works from it as you wish, or you can give someone else permission to make derivative works. If you give someone permission to make derivative works, you can rescind that permission, but you cannot prohibit them from using any of his or her lawfully created derivative works.

Those who use free open source software should be concerned that they may inadvertently create a derivative work, therefore putting their software under the open source license. If you modify the code of a program licensed under a General Public License or an Open Software License, you must adhere to the reciprocity agreement in these licenses and publish the source code of your derivative work. 

Protect Your Software with an Experienced Copyright Attorney

Blaier Law LLC is dedicated to providing your company with genuine legal protection so you can focus on software development, while we handle your intellectual property matters. Call the Law Office of Elliott J. Brown today at (732) 490-8200 or contact us online to learn how we can help your business today.

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