Thursday, September 17, 2015

How Often Do We Register SaaS Software Copyright?

Dear Rich: I can't seem to find any recommendations for how to handle copyright registration of software that is changing frequently. Now that SaaS (software as a service - ed) software companies are publishing software updates weekly or even daily, it seems that the pace of copyright registration might not be keeping up. The copyright office was pretty noncommittal, suggesting that the safest route would be to register whenever the code changed "substantially." Care to take a stab at suggesting a 'best practices' cadence here?

We agree with the Copyright Office. Unless the code changes dramatically or unless you are offering features that are materially different from previous editions, it doesn't make business sense to register each weekly change. This is premised on the fact that the major benefits from registration -- statutory damages, the possibility of attorney fees, the ability to file a lawsuit -- are related to infringement disputes. Assuming the version of the software that is infringed contains the key elements and code that were previously registered, you could proceed with your dispute and reap the benefits of registration. Even if there were a gap between what was infringed and what was registered, you still own the copyright (it's automatic regardless of registration) and could, if necessary, expedite registration to incorporate the features (and claim the actual damages for infringements of those new features). In summary, register the key versions of your code -- those versions, which if infringed, would cause you significant damage.

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