Copyright Infringement and Trade Secret Misappropriation of Software

Copyright infringement in the consumer entertainment market has drawn considerable media attention. Less well publicized are the growing number of cases involving copyright infringement of business application software by former employees. Similar cases between former joint venture partners also arise.

Identifying misappropriation of Intellectual Property (IP) in the form of software is rather different than for digital assets in the consumer market. The challenge arises primarily from the fact that software can be changed in many ways, often almost beyond recognition, and yet still preserve its commercial value.  That is its literal expression can be changed without effecting its concept. Furthermore, such changes can be propogated throughout a software program with relatively little cost or effort. This makes the problem of identifying and then providing evidence of copyright infringement or trade secret misappropriation in software to a standard acceptable in court more difficult.

Twenty years of case history have established a number of different approaches to assess copyright infringement in software. These have included expert evaluation of the quantitative and qualitative evidence of similarities in structure, sequence, and organization of the software. More widely the Altai Test, or abstraction-filtration-comparison test, used in Computer Associates International, Inc. v. Altai,Inc., 982 F2d 693, 702 (2d Cir. 1992), and variations upon this test, have been used.

To what extent can the analysis required by these tests be assisted by the use of automated tools?  There has been considerable research  over the past decade into tools that can help identify plagiarism by students in an academic setting. Among the solutions developed for software comparison are Sherlock, MOSS, jPlag and Yap3. At a basic level these tools may have applicability to the analysis of copyright infringement and trade secret misappropriation by employees in a corporate setting. However, the problem of plagiarism in academic coursework has characteritics that differ from the corporate setting. There can be several ways in which these techniques can be improved for use in the context of litigation. These include:
Care and attention are therefore required in both the selection and application of tools for software comparison to be used in a court of law. These then need to be supported by a formal methodology to make the process of software comparison repeatable. Steps that should normally be included are: