Intellectual property (IP) "is any product of the human intellect that the law protects from unauthorized use by others." The ability to develop innovative software that addresses marketplace needs is a right that tech startups and even mature technology companies strive to protect. Unfortunately, from a legal perspective, protecting software innovation isn't always easy.
If you develop a breakthrough software solution that also fills a glaring need in the market, according to US patent law, you have several legal protection options for your product:
- a patent that gives you exclusive control over the creation, use, and sale of your software;
- a copyright that protects your source code, object code, and certain unique elements of your user interface; or
- a trade secret, which protects your code, ideas, and concepts related to the product, but it will not protect you if someone reverse engineers your product or independently develops another product that does the same thing.
If you feel that your software IP might have been infringed upon and you choose to take legal action, the court will try to determine whether your software is an original creation. The most straightforward way of doing this is by using analytics to compare the code in your programs to the code in programs that you are alleging have copied your product. However, there are IP legal experts like Bob Zeidman who don't feel these code cross-comparison analytics are enough to uncover and protect against software IP violations.
SEE: Intellectual property: A new challenge in the cloud (Tech Pro Research)
"Some years ago....I was contacted by a party in a software copyright dispute in Europe," wrote Zeidman in an October 2014 article for IPWatchdog. "One software company had been accused of copying source code from another company. A group of software engineers had left one company to work for the other company; that's the most common reason that software is stolen or accused of being stolen."
Zeidman said that the plaintiff in the suit hired a well-known computer science professor from the Royal Institute of Technology in Stockholm, Sweden to compare the source code, and that the professor concluded the code had been copied. In response, the defendant presented another expert opinion from a well-known computer science professor who argued that it was standard procedure for many companies to write code in a similar fashion, and that an act of copying couldn't necessarily be inferred.
Cases like this one left Zeidman and others scratching their heads and acknowledging that lawyers and judges—most of whom are not knowledgeable about the software development process—needed a more comprehensive set of analytics tools to really understand whether software had been infringed upon.
SEE: Digital forensics resembles the Wild West when it comes to regulation (TechRepublic)
This more robust method of software analytics goes beyond the traditional method of comparing one software code base to another to check for the degree of similarity. Instead, a set of algorithms is applied to the two different software exhibits, with the understanding that it is easy for an alleged IP copier to modify code or even code syntax so that the new program won't be identified as a copy attempt in a comparison of code.
The new code comparison analytics that individuals like Zeidman developed and now use compares code for similarity but also performs a similarity evaluation for the functionality that each software provides. This aligns with IP legal protections because IP law recognizes infringement based upon the degree of similarity between two products, and evaluations of similarity can be performed on functionality as well as on other factors like code.
Is this method perfect? No, but at least it addresses two key issues:
- Lawyers and courts of law, which usually do not have backgrounds in software development, have better analytics for evaluating whether one piece of software is so similar to another that infringement has occurred; and
- There are software forensics tools in the market that can help lawyers and courts make more comprehensive assessments of similarity or dissimilarity by looking not only at code, but at significant overlaps in functionality that could indicate that infringement has occurred.
For analytics practitioners and tech companies, this is welcome news in a field that continually lags when it comes to technology: the legal system.
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Mary E. Shacklett is president of Transworld Data, a technology research and market development firm. Prior to founding the company, Mary was Senior Vice President of Marketing and Technology at TCCU, Inc., a financial services firm; Vice President of Product Research and Software Development for Summit Information Systems, a computer software company; and Vice President of Strategic Planning and Technology at FSI International, a multinational manufacturing company in the semiconductor industry. Mary is a keynote speaker and has more than 1,000 articles, research studies, and technology publications in print.