Copyright Issues: SaaS Software.

Short answer: copyright is the most popular and easiest way to legally protect your SaaS software, but it only covers part of what matters. It protects your code as written expression. It does not protect the underlying functionality, and your GUI is a closer call than most vendors assume.

While there are several ways to legally protect your SaaS software, copyright is usually the first and easiest line of defense. Every SaaS executive should understand a few things about how it actually works, and where it stops.

What Copyright Protects (and What It Does Not).

Copyright protects original works of authorship the moment they are fixed, and your source code counts as a literary work. So protection attaches automatically as your developers write. What copyright does not protect is just as important: it does not cover the underlying functionality, ideas, methods, or processes in your software. Two programs can do the same thing with different code, and copyright generally will not stop the second one. That gap is exactly why you layer in contracts and trade secret protection too, which I cover below.

Can You Obtain Copyright Protection for Your GUI?

This is an important issue, and one many vendors do not understand. As a general matter, obtaining copyright protection for source code is easy, but obtaining protection for a GUI is not that simple. The look and feel of an interface mixes protectable expression with unprotectable function, and courts treat it cautiously. Here is a deeper post on the ins and outs of GUI protection.

Contract and Copyright Protection Are Different. Use Both.

Contracts and copyright are two completely different ways to protect your software, and the smart move is to use both. Copyright gives you rights against the world. Your EULA or SaaS agreement gives you rights against your customer, including restrictions a copyright alone cannot reach, like no reverse engineering, no benchmarking, and usage limits. This post explains the difference and why you want both working together.

What Is Fair Use?

Fair use is an important defense to copyright infringement, and a concept that is rarely understood. It is essentially a four-factor balancing test (the purpose of the use, the nature of the work, how much was taken, and the effect on the market). Keep in mind it is subjective and decided case by case, so relying on it as a plan is risky. Here is the longer explanation of how fair use works.

Register Early for Real Teeth.

Copyright attaches automatically, but registering with the U.S. Copyright Office is what gives the right teeth. Registration is a prerequisite to suing for a U.S. work, and registering early unlocks statutory damages and attorney’s fees. For a software company that is cheap insurance (see 4 Great Reasons to Register Your Software for Copyright Protection).

Protecting your software really matters. If you do not take steps to protect it, you leave the product vulnerable to competitors building lookalikes and pulling away your customers. If you want a second set of eyes on your protection strategy, that is exactly what a software copyright lawyer does. I hope this helps.

For the foundational frame on the four IP regimes that protect software (copyright, trademark, patent, and trade secret), see Intellectual Property Basics for Software Companies.

Common Questions About SaaS Software Copyright.

Does copyright protect my SaaS source code? Yes. Source code is a literary work, so copyright attaches automatically the moment your developers write it and fix it in a file. It protects the code as written expression, not the functionality behind it.

Does copyright protect my software’s features or functionality? No. Copyright does not cover ideas, methods, or processes, so a competitor can build software that does the same thing with different code. Patents and trade secrets cover function; copyright covers expression.

Do I have to register to own the copyright? No. You own it on creation. But you must register with the U.S. Copyright Office before you can sue for infringement of a U.S. work, and early registration unlocks statutory damages and attorney’s fees.

Is my user interface protected by copyright? Sometimes. A GUI mixes protectable expression with unprotectable function, so protection is a closer call than for source code, and courts decide it case by case.

Resources:

• Copyright Protection for Your Software’s GUI
• Contract vs. Copyright Protection: What Is the Difference?
• 4 Things to Remember About Copyright Law
• What Is Fair Use?

Disclaimer:

This post is for informational and educational purposes only, and is not legal advice. You should hire an attorney if you need legal advice, which should be provided only after review of all relevant facts and applicable law.