1509.1 (F) (4) (D) Appropriate Method for Blocking Out Source Code That Contains Trade Secret Material
As discussed in Sections 1509.1 (F) (4) (B) and 1509.1 (F) (4) (C), an applicant may block out the portions of the source code that contain trade secret material. The applicant should not block out any portions of the source code that do not contain trade secret material.
The applicant may block out entire words or phrases in the source code that are trade secrets. In the alternative, the applicant may block out entire pages of the code containing trade secrets, provided that the applicant leaves a vertical or diagonal strip of visible text on each page that is sufficient to show that the page contains copyrightable authorship. In all cases, the blocked out portions should be “proportionately less than the material remaining, and the deposit [should reveal] an appreciable amount of original computer code.” 37 C.F.R. § 202.20 (C) (2)(vii) (A) (2).
The U.S. Copyright Office will not accept blocked out pages that conceal virtually all of the copyrightable expression in the work. The unblocked portions of the deposit must contain enough computer code to enable the Registration Program to determine whether the deposit contains a sufficient amount of copyrightable expression to warrant registration under Sections 102 (A) and 410 of the Copyright Act. The Office has not attempted to quantify the amount of source code that must remain visible, because the determination of copyrightable expression can never be based on an arbitrary formula. Instead, the regulation requires “[a]n appreciable amount of original computer code,” meaning sufficient original computer code to constitute recognizable copyrightable expression. Id. Whether a particular deposit meets this standard will be determined on a case-by-case basis. In most cases, the presence of copyrightable authorship is readily apparent. However, if all of the copyrightable expression has been blocked out and only uncopyrightable material remains visible, a member of the Registration Program will ask the applicant to submit an acceptable printout of source code and will change the effective date of registration to the date that an acceptable deposit is received. If the applicant is unable or unwilling to submit a deposit with copyrightable authorship that is visible to the Registration Program, registration may be refused, even if the unblocked portions represent more than fifty percent of the source code shown in the identifying material. See Registration of Claims to Copyright Deposit Requirements for Computer Programs Containing Trade Secrets and for Computer Screen Displays, 54 Fed. Reg. 13,173, 13,174 & n.3, 13,175 (Mar. 31, 1989).