Under Berne a software developer automatically has copyright protection as the software code is written. However, if one fails to make a copyright deposit within 3 months of publication or before actual infringement, the recovery will be limited to an injunction and actual damages which are difficult to prove.
Alternatively, if the source code is deposit timely, the authors enjoys the additional benefits of:
- Attorneys fees;
- Court costs; and
- Statutory damages up to $150,000 per violation.
This is why the movie and recording industry get multi-million dollar judgments against file-sharers. Microsoft, Adobe and other large software companies largely delegate copyright violation enforcement to the Business Software Alliance (BSA) which uses about 80 firms around the world and investigates about 15,000 reports of software piracy each year. BSA can afford to do this because the statutory damages are so easy to collect when the copyright deposit is timely made.
The government fee for the copyright deposit is $35 per submission which is done electronically. Here is a screen shot of the Electronic Copyright Office deposit application:
The U.S. Copyright Office’s Circular 61 explains how to go about depositing software code.