Can I Use Someone Else's Software in My Software App?

Although many people assume that copyright only relates to creative works such as poetry, paintings, and novels, copyright law can also protect software code. Using someone else’s code in your app, website, or software without obtaining their permission could constitute copyright infringement and expose you to legal liability. Whether your use constitutes infringement depends on the nature and extent of your copying.

When Wholesale Copying of Code Violates Copyright Law

Subject to some important limitations, copyright protects source code (code written in high-level computer languages consisting of English-like words and symbols readable by humans, such as C++, and Java), object code (the series of binary ones and zeros read by the computer itself to execute a program, but not readable by ordinary humans), microcode (instructions that tell a microprocessor chip how to work), and other forms of computer code such as Java byte code.

Copyright protects both applications programs (programs that perform a specific task for the user, such as word processing, will and trust writing, accessing the Web, bookkeeping, or playing a video game) and operating systems and utility programs (programs that manage a computer’s internal functions and facilitate use of applications programs).

Wholesale copying or software piracy takes a variety of forms, including:

  • Creating “new” software from old.
  • Creating a “new” program by copying a substantial amount of the protected expression in a preexisting program. This is a classic example of software piracy. For example, imagine that AcmeSoft, Inc., a large software developer, makes 100 unauthorized copies of a well known HTML editor program and distributes it to its employees. This would be infringement.
  • Counterfeiting published software. For example, imagine that Fly By Night Software, Inc., a software distributor, makes 50,000 unauthorized copies of the popular computer arcade game Kill or Die, and distributes them throughout the world. This would be infringement.
  • Online piracy. This includes uploading and downloading computer programs to and from the Web without the copyright owners’ permission.

Learn more about Copyright and Ownership Rights.

    What About Copying Only a Small Amount of Code?

    Copying only a small portion of a program’s code could constitute copyright infringement, but it is less likely to qualify than taking an entire piece of software.

    A particular routine or subroutine or other piece of code may enjoy little or no copyright protection. In this event, copying it wouldn’t be an infringement.

    On the other hand, if the code is protected, copying only a small amount could be an infringement, particularly if it is a highly creative or important example of the programmer’s art. Copyright infringement has been found to exist where only 14 lines of source code out of a total of 186,000 lines were copied verbatim. See, for example, SAS Inst., Inc. v. S&H Computer Sys., Inc., 605 F.Supp. 816 (M.D.Tenn. 1985).

    To avoid the potential for a lawsuit, you are usually be better off not copying other people’s code.

    Creating Unauthorized Derivative Works

    Copyright infringement is not limited to the crude wholesale copying described above. It can take a more subtle form—creating “new” software from old, for example, by transferring a chunk of code to the new program and subsequently modifying it.

    If such a “new” program contains a substantial amount of copyrighted material from an existing program, it may constitute a derivative work. You need to obtain permission to create a derivative work from someone else’s software. Common examples of derivative works include:

    • Updates and new versions. An updated or new version of an existing program, website, book, or other work is a most common example of a derivative work. Only the person who owns the derivative work’s rights in a work may create an updated or new version of it or permit others to do so.
    • Translations. A translation of a work from one language to another—whether a human or computer language—is a very common type of derivative work. It is usually necessary, for example, to obtain permission from the copyright owner to translate a program into a new source code language.
    • Transferring a work from one medium to another. Changing the medium in which an original work is fixed normally creates a derivative work consisting of the expression as fixed in the new medium. And, regardless of what new medium is used, a copyright infringement occurs if you don’t first obtain permission from the owner. For example, a person who uses a scanner to create a digital version of a copyrighted photograph is creating a derivative work.
    • New works based on other underlying works. Any work based upon a preexisting work is a derivative work. Computer games are good examples. A computer game based on a movie, television show, board game, or other underlying work is a derivative work. Naturally, you need permission from the owner of the preexisiting work’s rights to create a new work based upon it.

    Learn when Using Copyrighted Material Is Acceptable.

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