Forensic Expertise and Judicial Expectations

Forensic Expertise and Judicial Expectations

Copyright: © 2014 |Pages: 27
DOI: 10.4018/978-1-4666-5804-2.ch004
(Individual Chapters)
No Current Special Offers


This chapter primarily focuses on recommendations, suggestions, and directives from the legal systems on matters related to investigation of software copyright infringement and then presents them as positive contributory gestures by the legal systems across the world. Samples are taken from various laws, judicial suggestions and recommendations, and legal directives on copyright in order to discuss the ways in which these laws, recommendations, and directives can add credibility to the entire forensic procedure as well as value to the final forensic answers. These samples address judicial recommendations on a variety of software copyright issues such as software authorship, copyright protection of various software elements (including literal and non-literal software parts), the constitution of “substantial part,” the interpretation of software ideas, forensic exclusion policies of various unprotectable elements, “mining,” etc. The chapter concludes stressing the importance of imparting extensive cyber forensic education to judicial officers for making them fit not only to take intelligent judicial decisions but also to put forward wise judicial recommendations on software copyright infringement cases.
Chapter Preview

A Forensic Expert’S Perspective Of The Judicial Expectations

Judicial Expectations as Positive Gestures in Forensics

As discussed in Chapter 2 and 3, the ultimate legally decisive task in any copyright infringement litigation is establishing whether the accused has violated the copyright owned by the complainant (or plaintiff). The judiciary systems across the world expect that the forensic investigators will give them their expert final opinion if there is enough evidence to believe that the accused has infringed the copyright and thus, violated the copyright law (by copying any non-merged expressions or elements or constructs copyrighted by the plaintiff) through illegal or unauthorized reproduction or use of any copyrighted material. The scope of this expectation is normally built around answers for judicial questions such as: (1) Is the plaintiff’s program as a whole entitled to copyright protection? (2) Are there similarities between plaintiff’s and defendant’s programs? (3) Do these similarities arise or exist as a result of copying? (4) Do such similarities constitute a substantial reproduction? (Lai, 2000) The answers to these questions are expected to be arrived at through scientific assessment and evaluation.

Judiciary systems of various countries have clearly expressed expectations about not just this final forensic opinion but also on each stage of the entire forensic procedure leading to this final forensic opinion. As the judge’s final decision making largely depends on the results of the forensic task, it is to be expected that the judiciary would want the forensic results as well as procedures to be legally correct as well as jurisprudentially valid. Needless to say, the forensics experts therefore need to be crucially aware of the judicial expectations of them in order that their observations and pronouncements are credible, acceptable and legally valid. Moreover, the forensic experts are expected to take any judicial decision, comment, or suggestion on forensic technology as a positive gesture from the part of the judiciary to further update the forensic methodology and also to enhance the quality of forensic results. If not, there is a serious risk of the expert’s opinion, however grounded it be in computer technology, being challenged in the court.

Levels of Legitimization of Forensic Procedures

The judicial expectations on both the legality and procedural validity of copyright infringement forensics derive from two different levels of legitimization. They are: (1) existing copyright laws; and (2) further legal additions into the praxis of these copyright laws arising from precedents established in actual cases. For instance (of legal additions), while implementing copyright laws in a case involving software copyright infringement, judges do not hesitate to put forward certain judicial suggestions on the forensic procedural aspects or thoughtfully comment on the forensic procedural aspects which can later be set as legal precedents or have forensic implications subsequently. In Europe, because of the existence of the European Union, there is an additional level that adds to the legitimization, namely, the directives that come out of Brussels (See Figure 1). In Africa also, there is an additional level that adds to the legitimization because several African countries depend on the copyright laws of and the judicial precedence in UK whenever and wherever their own copyright laws are unclear.

Figure 1.

Judicial expectations in forensic procedures


How judicial expectations can affect software forensics can best be illustrated through a few judicial decisions, suggestions and comments in various cases as shown in the next section. Those that have appeared since early 1990s have been revolutionary that practically outdate most of the things prior to that. Such judicial contributions also form the brief of this chapter.

Complete Chapter List

Search this Book: