Is it worth registering software with the U.S. Copyright Office?

Question

nolo.com says: "If you want to stop someone from using or otherwise infringing on your work, you must sue the infringer in federal court. However, in order to do so, you must first have registered the copyright with the U.S. Copyright Office."

Is it true that the only way to take legal action against software copyright infringers in the U.S. is to first register with the U.S. Copyright Office? And is it true that that's the only way to recover statutory damages?

Are there other benefits of registering software with the U.S. Copyright Office?

What are the costs, besides the fee and the hassle of re-registering new versions of the software?

Answer 1

A work does not have to be registered with the U.S. Copyright Office to be considered a copyrighted work.

Copyright protection subsists from the time the work is cre­ated in fixed form. The copyright in the work of authorship immediately becomes the property of the author who cre­ated the work. No publication or registration or other action in the Copyright Office is required to secure copyright.

http://www.copyright.gov/circs/circ1.pdf

However, you do have to be registered with the U.S. Copyright Office to sue for statutory damages against someone violating your copyright.

The benefits of copyright registration are outlined on page 7 of the circular I linked. Among these advantages are the following:

• Registration establishes a public record of the copyright claim.

• Registration allows you to file an infringement suit in court, for works of U.S. origin.

• If made before or within five years of publication, regis­tration will establish prima facie evidence in court of the validity of the copyright.

• If registration is made within three months after publica­tion of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

• Registration allows the owner of the copyright to record the registration with the U.S. Customs Service for pro­tection against the importation of infringing copies.

Answer 2

Is it true that the only way to take legal action against software copyright infringers in the U.S. is to first register with the U.S. Copyright Office? And is it true that that's the only way to recover statutory damages?

In the United States, copyright is attached as soon as the work is created. Registration is not necessary unless you wish to seek statutory damages against an infringer ¹. You can seek litigation and actual damages without registration. However, registration does provide a legal record that can assist with matters of litigation of all kinds.

Are there other benefits of registering software with the U.S. Copyright Office? What are the costs, besides the fee and the hassle of re-registering new versions of the software?

I would recommend consulting a lawyer who specializes in intellectual property or software law. There are a lot of reasons why you might want to consider registrating versus not registering, and a lawyer with this expertise would be best suited to help you determine the best course of action to help you legally protect your work.

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1: There appears to be some confusion on this point. Most sources that I've found say that the Berne Convention allows you to seek actual damages from an infringer without copyright registration. However, [Robert Harvey links to a document from the US Copyright Office] that says registration allows you to file infringement suits, possibly indicating that registration is required to file any kind of legal action in the United States (a signer of the Berne Convention). Best course of action: Consult a lawyer, specifically an intellectual property or software law specialist.

Answer 3

Do you need to protect your software?

Its a dangerous area - in particular people have already copyrighted and patented all kinds of things that take 5-10 minutes of trying to solve the problem to independently invent.

You might have infringed many copyrights and patents already...

My opinion on this is to ignore the madness and continue with common sense in the hopes that if anyone does try and bring litigation I can make a persuasive enough argument to have it laughed out of court. Its not a particularly safe stance to take though. Although I believe there is ample precedent for US copyright and patents having no merit outside of the US...