Copyright and Digital Files
Can I backup my computer software?
Yes, under certain conditions as provided by section 117 of the Copyright Act. Although the precise term used under section 117 is “archival” copy, not “backup” copy, these terms today are used interchangeably. This privilege extends only to computer programs and not to other types of works.
Under section 117, you or someone you authorize may make a copy of an original computer program if:
- the new copy is being made for archival (i.e., backup) purposes only;
- you are the legal owner of the copy; and
- any copy made for archival purposes is either destroyed, or transferred with the original copy, once the original copy is sold, given away, or otherwise transferred.
You are not permitted under section 117 to make a backup copy of other material on a computer's hard drive, such as other copyrighted works that have been downloaded (e.g., music, films).
It is also important
to check the terms of sale or license agreement of the original copy
of software in case any special conditions have been put in place by
the copyright owner that might affect your ability or right under
section 117 to make a backup copy. There is no other provision in the
Copyright Act that specifically authorizes the making of backup copies
of works other than computer programs even if those works are
distributed as digital copies.
Is it legal to sell backup copies of computer software
(in online auctions or on website)? Is it legal to buy and use a
backup copy of software I already own?
No. The Copyright Act does not permit anyone to sell backup copies
to third parties separately from the original copy of the software. If
you lawfully own a computer program, you may sell or transfer that
lawful copy together with a lawfully made backup copy of the software,
but you may not sell the backup copy alone.
We have been made aware of websites that are offering to sell “backup” copies
of software via download over the Internet or in a custom-burned CD-R format,
under the guise that section 117 permits this. Section 117 does NOT permit
the sale of backup copies. Again, section 117 does not allow you to sell backup
copies to someone else except when such backup copies are sold together with
the original lawfully owned copy. It does not allow anyone to solely distribute “backup” copies
to the public. In addition to being a violation of the exclusive right of distribution,
such activity is also likely to be a violation of the terms of the license
to the software. In many cases these sites appear to be a front for distribution
of illegal copies, which is copyright infringement. You should be wary of sites
that offer to sell you a backup copy.
And if you do buy an illegal backup copy, you will be engaging in
copyright infringement if you load that illegal copy onto your
computer, i.e., the unauthorized reproduction of the infringing
computer program into memory. Lesson: if you want a backup copy of a
lawfully owned computer program, back it up yourself.
Can I copyright my website?
The original authorship appearing on a website may be
protected by copyright. This includes writings, artwork, photographs,
and other forms of authorship protected by copyright. Procedures
for registering the contents of a website may be found in Circular
66, Copyright Registration for Online Works.
Can I copyright my domain name?
Copyright law does not protect domain names. The Internet
Corporation for Assigned Names and Numbers (ICANN), a nonprofit
organization that has assumed the responsibility for domain name
system management, administers the assignation of domain names
through accredited registers.
Is it legal to download works from peer-to-peer networks and if not, what is the penalty for doing so?
Uploading or downloading works protected by copyright without the authority
of the copyright owner is an infringement of the copyright owner's exclusive
rights of reproduction and/or distribution. Anyone found to have infringed
a copyrighted work may be liable for statutory damages up to $30,000 for each
work infringed and, if willful infringement is proven by the copyright owner,
that amount may be increased up to $150,000 for each work infringed. In addition,
an infringer of a work may also be liable for the attorney's fees incurred
by the copyright owner to enforce his or her rights.
Whether or not a particular work is being made available under the authority of the copyright owner is a question of fact. But since any original work of authorship fixed in a tangible medium (including a computer file) is protected by federal copyright law upon creation, in the absence of clear information to the contrary, most works may be assumed to be protected by federal copyright law.
Since the files distributed over peer-to-peer networks are primarily copyrighted works, there is a risk of liability for downloading material from these networks. To avoid these risks, there are currently many "authorized" services on the Internet that allow consumers to purchase copyrighted works online, whether music, ebooks, or motion pictures. By purchasing works through authorized services, consumers can avoid the risks of infringement liability and can limit their exposure to other potential risks, e.g., viruses, unexpected material, or spyware.
For more information on this issue, see the Register of Copyrights' testimony before the Senate Judiciary Committee.
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