From the Executive Summary:
The U.S. Copyright Office in recent years has responded to the rapid changes in software development by offering enhanced application tools and a smoother review process. Even these efforts, however, have failed to keep pace with the needs of software creators, developers, and distributors. Many software industry stakeholders have described a need for practical improvements in the registration process, including greater clarity in the rules that govern such crucial aspects as publication date, derivative work definitions, and the protocols for depositing source or object code. While registration remains common practice among larger companies with longstanding application practices, many in the software industry, particularly among newer or smaller companies, express frustration over the time it can take to navigate the registration process. Other industry stakeholders are shifting away from registration altogether, attributing the shift to the new paradigm of cloud computing.
As the software industry has evolved and, in some instances, migrated from resident (or “on- premises”) software toward cloud-based products, many new developers have de-emphasized, or even excluded, copyright registration from their intellectual property practices. Several factors have contributed to this emerging posture: the cloud enables the delivery of software from the developer’s presumably secure premises as a service rather than as a product, thus reducing the concern for copyright infringement. Also, some developers fail to fully appreciate the benefits offered by registration, and, for those who do register, the application process can be complicated by the increased use of third-party, open-source software from publicly shared code repositories. In light of these new features of the software production and distribution landscape, this report investigates not only the challenges associated with registering software in its traditional configurations, but also the implications of the at least partial shift to cloud-based and open-source configurations.
The Copyright Office has asked the Stanford Law and Policy Lab Software Registration Practicum to formulate options that will help it align its software registration regulations and practices with market needs and the public interest. Through interviews with industry stakeholders and Copyright Office officials, together with a review of current software registration practices and analysis of current law and regulations, this report evaluates options to improve the registration process (see Table 2, “Summary of Options”). The report distills information from corporate, nonprofit and independent developers and distributors of software, which was gained principally, although not exclusively, through their lawyers; it also relies on first-hand experience with pro bono registrations performed by the practicum team.