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Intellectual Property and the Lazy Developer

Posted: 10-Aug-2016 13:00:00
Author: Jason Coyne

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A common issue we see in software examinations is the apparent laziness of developers. It is often clear that they choose to spend time locating old code which performs a similar task to what they require rather than developing it themselves.

We see slight alterations, cosmetic changes and translations to other programming languages, but ultimately the result is still copied code. While there are often legitimate reasons for doing this there are many potential pitfalls.

What are the issues?

These might include a simple case of one developer infringing the rights of some other legal entity, or it could equally be someone copying code they have developed in the course of previous employment. Both of these scenarios are likely to save the developer time, but can have serious consequences for both the infringer and the injured party. 

What does the law say?

The most obvious concern here is breach of copyright. If a developer has done work for a company in the course of their employment, then the intellectual property (IP) for that work vests in the company rather than the developer. It is therefore possible that someone can breach copyright even if they use their own work as the reference. Note that if the developer worked on commission for a particular piece of software, then the copyrights will usually vest with them rather than their employer; the terms of their contract may vary that.

There are also further issues relating to confidentiality. Development (of anything) naturally lends itself to secrecy, so copying source code from one commercial project to another could very well bring a claim relating to stolen trade secrets.

What else needs to be considered?

Legal consequences are not the only issue here. Commercially speaking, serious damage can be done to the injured party if their developing software is shared with competitors. This is something which can have irreparable consequences, because once the information has been shared, it becomes essentially impossible to recall it in its entirety. It can be deleted from servers and PCs and mobile devices and emails (assuming they can all be found), but it can never be deleted from the minds of those who have seen it.

Whatever remains could give another firm enough information to become a new competitor. This will always be a problem because, in the end, if someone sits down with a blank page and writes a piece of software, the only one who will ever really know what they saw versus what they came up with independently is that person.

What can we do?

Through electronic analysis of code sets utilising software comparison applications followed by further manual examination of ‘flagged’ similarities such as comments, white space, variable naming conventions and early versions of code, IT Group has been able to identify copied code in a number of complex industries.

Developers will invariably claim that they did not copy the code, and when they are presented with evidence to the contrary we will often hear about how it was insignificant or that it was only information which is, or was already in the public domain.

This is rarely (if ever) the case, and when confronted with further evidence they will claim to have only used the original source code as a reference guide for their new software. Note that this can still breach copyrights, but this tends to be a moot point because we will find instances of direct copy and pasting in the vast majority of instances. 

To conclude..

Laziness is a real driver of IP infringement. Developers need to be sure that they own the copyrights to a piece of software if they wish to use it as a guide, and they should spend time reading any confidentiality agreements they are given. The consequences of breach are usually far more serious than the amount of time it would take to code a piece of software from scratch since, along with the obvious immediate penalties such as lawsuits, it is likely to mean that you will never again work as a developer.

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