Protecting and Selling Your Mobile Application

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So you’ve developed a mobile application and you’re ready to bring it to market. To improve your chances of success and protect your intellectual property interests in your app, keep the following considerations in mind:

1. Your mobile application—like all written code—is a literary work protected by the United States Copyright Act.

The Copyright Act protects “original works of authorship” fixed in a tangible medium. According to Circular 61 of the U.S. Copyright Office, Copyright Registration for Computer Programs:

“Copyright protection extends to all the copyrightable expression embodied in the computer program. Copyright protection is not available for ideas, program logic, algorithms, systems, methods, concepts, or layouts.”

What this means is that your written code is an original work of authorship, and therefore the proper subject of copyright protection and, like any other original expression, will be protected by copyright laws instantly upon your creation of it. Copyright protection grants the author of a work the exclusive right to duplicate, distribute and display the work to the public.

You should consider registering your original work with the U.S. copyright office, because you cannot sue for copyright infringement unless your work is registered. Additionally, registration makes you eligible for statutory damages up to $150,000 and attorney’s fees in such a suit.  You can also register your work with United States Customs and Border Patrol to stop the importation of infringing goods (although admittedly this is less important for apps than for other types of work).

2. Any source code that you have licensed from someone else to create your app— including open source code—cannot be copyrighted by you, and the license agreement must be honored.

Many authors of mobile apps use open source code, which is source code that is “open” to the public for use and development. Any source code that is not your original work cannot be registered by you with the U.S. Copyright Office.

Although open source code is available for use by developers, such use is governed by a license agreement that covers copyright, distribution and sharing. Some license agreements (Apache’s, for example) retain copyright protection in the source code, but allow developers to add their own code and distribute the resulting product. Such licenses typically require that you, the developer, provide public access to the open source code and a copy of the open source license agreement with distribution of the new product.

If you violate any license for source code used in your app, or otherwise infringe upon the intellectual property rights of the source code’s owner (e.g. you attempt to copyright the source code in your app, or fail to provide public access to that code if required), your app may be removed from the App Store and you may be subject to legal action.

OpenLogic, Inc. recently scanned 635 mobile apps for use of open source code and compliance with open source license agreements. Results released on March 8, 2011 revealed that 66 apps contained open source code, and 71% violated the license agreement of the open source code.

You should examine the license agreement for any source code incorporated in your mobile app. Most open source license agreements can be found at http://www.opensource.org/licenses.

3. Register the name of your app with the United States Patent & Trademark Office (USPTO).

To protect the name of your app, you should register that name with the USPTO. Registration provides you with numerous benefits—it will protect the name of your app nationwide, gives notice to anyone who might consider using your app’s name in a confusing way that you own the name, allows you to sue in federal court for infringement of your registered trademark and, like copyright law, allows you to register your intellectual property with United States Customs and Border Patrol to stop importation of infringing goods.

Mobile apps provide a great new platform for innovators—like all other areas of intellectual property, apps raise a particular set of issues that you need to know before you start.  Committing this article to memory is a great way to start. Good luck!