Software Copyright Infringement and Litigation

Software Copyright Infringement and Litigation

Copyright: © 2014 |Pages: 21
DOI: 10.4018/978-1-4666-5804-2.ch002
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Abstract

This chapter deals with software copyright infringement litigations. The chapter commences with a mention of the moral and legal rights of individuals, organizations, and institutions to protect their property rights to software and also to seek remedial measures in case of violation of their rights. It then deals with various aspects and elements of evidence along with the procedure and ethics of the collection of evidence, moving further on into the theoretical aspect of the idea-expression dichotomy and its practical implication on the evidential elements, related complications, etc. The chapter then goes on to explain the importance of the selection of forensic test procedures and the legally decisive elements involved in these test procedures in the context of the idea-expression dichotomy of various copyright laws. It concludes by explaining the complications in the forensic reporting.
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Unlawful Borrowing of Software

One of the most interesting things about the utilization of software is its commercial implication. Like any ‘property’ with exclusive ownership rights and profit potential, software too is liable to be misused for commercial or other personal gain, despite all security measures, precautions and insurance protection normally characteristic of all private property. Although most software is created for a specific purpose with a specific functional motivation, like any property it needs to be protected from misuse and abuse, particularly exploitative abuse through unauthorized reproduction. Instances of such convenient and unlawful ‘borrowing’ of software, particularly by unscrupulous agencies are widespread indeed and this is often comparable to property theft and plagiarism, and thus amount to criminality. Plagiarism of software (in educational institutions), piracy of software (in industry) for commercial or non-commercial use, copyright infringement of software and its related files such as databases, are all various instances of such unlawful ‘borrowing’ of software. (Note: plagiarism and piracy can amount to copyright infringement and copyright infringement in turn can happen even without actually pirating the software. These aspects are explained further in this chapter.)

Individuals, organizations and institutions have every moral and legal right to ensure the exclusivity of their property rights to software they have obtained for themselves. It is only natural that when such rights have been flagrantly violated, particularly for commercial profits (and uses), the injured party will invariably resort to legal measures both for the protection of their property and for the restitution of damages involved therein. While instances of plagiarism issues related to curricular software assignments is less likely to reach the court of law in the form of litigation, software piracy and software copyright infringement in industry can trigger a legal battle. In a legal battle on software copyright infringement, several evidential, forensic and legal issues are involved and an explanation of these issues is precisely the objective of this chapter.

Basis for the Complaints and Ensuing Litigation

Any software developer or the wronged party can approach the law enforcement agency with a formal complaint alleging software copyright infringement. Some of the facts (Bhattathiripad, 2012) that form the basis for the complaints and ensuing litigation are:

  • 1.

    Allegedly pirated software contains complainant’s copyrighted idea as well as expression verbatim.

  • 2.

    Allegedly pirated software contains the complainant’s copyrighted idea, which (even if it) is expressed differently.

  • 3.

    Allegedly pirated source code (including the related files and databases) is a modified form of complainant’s source code.

  • 4.

    Allegedly pirated executable code is a modified form of complainant’s executable code.

  • 5.

    Allegedly pirated source code or object code procedurally calls an external file which is a modified form of the file that the complainant’s source code calls.

Whatever be the reason or motivation behind the litigation, once an official complaint has been lodged, the authorities then follow the normal legal procedure of setting things right through whatever legal and forensic measures and procedures are relevant and available. The ensuing legal procedures include steps for; (1) collecting data (in the form of software, databases and other related files) from the complainant as well as the defendant; (2) preserving the collected data till the end of the court case; (3) forensically analyzing the collected data (generally by comparing these two sets of software, and other related databases and files); (4) converting the results of comparison into physical documentary evidence; and (5) presenting these pieces of evidence before the judicial authorities, often backed up by the testimony of a cyber forensic expert in the court of law (DFRWS, 2001).

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