Challenging the validity of a software copyright registration is a fundamental and effective strategy for a party accused of copyright infringement. If a federal court finds that the registration is invalid, the court will dismiss the infringement suit. A registration is invalid if it contains material errors. While immaterial errors, such as inaccurately stating the date of the work’s creation or failing to list preexisting works or coauthors, do not jeopardize the validity of a registration, the failure to submit a “proper deposit copy” is deemed a material error, and therefore can invalidate the entire copyright registration. In this article we explore methods for assessing whether a deposit copy is proper in the context of software copyright registrations.
The Deposit Copy Requirement: Examining Section 408 of The Copyright Act
Section 408 of the Copyright Act requires applicants for copyright registration to include “one complete copy” of their work as part of the application. However, applicants seeking to register computer programs for copyright are permitted to instead deposit “identifying material,” consisting of the first and last 25 pages of source code.
An Original Or Bona Fide Copy…And Nothing Less
A copyright registration of a computer program ideally includes either an original copy or a bona fide copy of the program. An original copy consists of a clean, non-updated, unaltered copy of the software source code as it was originally published. The safest methods of source code storage to preserve an original copy are: (1) a repository within a source code control system maintained by the developer of the registered software; or (2) an escrow account established with a third-party escrow agent. The preserved original copy may be utilized to produce a bona fide copy which is “virtually identical to the original” and was “produced by directly referring to the original.” Unless an applicant utilizes these preservation and authentication methods, the certificate of application may be vulnerable to an invalidity challenge because the deposit copy will likely not represent a bona fide copy of the original work at the time of its creation. As a result of some applicants’ attempts to re-create original works, courts have held that an “original work” means exactly that: the deposit copy must be virtually identical to the original work and produced directly from reference to the original rather than from memory.