721.9 (E) Date of Publication
If the version that the applicant intends to register has been published as of the date that the application is filed with the U.S. Copyright Office, the applicant should provide the month, day, and year that the version being registered was published for the first time. As a general rule, the applicant should provide a date of first publication only for the specific version that will be submitted for registration. The applicant should not provide a date of publication for the first version of the program or any other version of the program that is not included in the application.
A computer program is considered published when copies of the program are distributed “to the public by sale or other transfer of ownership, or by rental, lease, or lending” or when copies of the program are offered “to a group of persons for purposes of further distribution, public performance, or public display.” 17 U.S.C. § 101 (definition of “publication”). As a general rule, a program is considered published if there has been a general distribution of the program code, regardless of whether the copies are distributed by purchase or license and regardless of whether the copies are distributed on a CD-ROM, DVD, or downloaded online. Likewise, a program is considered published even if the copies contained object code rather than source code and even if the source code has not been disclosed to the public. See Midway Manufacturing Co. v. Strohon, 564 F. Supp. 741, 751 (N.D. Ill. 1983) (“the object code is nothing other than a direct transformation of a computer program, composed… in source code”).
When completing an online application, the applicant should provide the date of first publication on the Publication/Completion screen. When completing a paper application the applicant should provide this information on space 3 (B) of Form TX. For guidance on completing this portion of the application, see Chapter 600, Section 612.
For a general discussion of publication and for specific guidance on determining whether a particular work has been published, see Chapter 1900.