Legal Issues in Legal Issues in SoftwareSoftware

CS 415, Software Engineering II

Mark Ardis, Rose-Hulman Institute

April 11, 2003

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DISCLAIMERSDISCLAIMERS

I am not a lawyer. Nothing in this lecture should be

considered legal advice. The contents of this lecture are for

educational purposes only.

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"The first thing we do, let's kill all the lawyers."-- Shakespeare, King Henry VI, Pt. IV, ii, 86

"The more I see of lawyers, the more I despise them."-- Mark Twain, letter to James R. Osgood, Jan.25, 1876

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OutlineOutline

Lawsuits Intellectual property

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LawsuitsLawsuits

Negligence Malpractice

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NegligenceNegligence

You have a duty to exercise reasonable care in providing services.

You are negligent if no reasonable person in your situation would have acted as you did.

Penalties may be limited by contract.

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MalpracticeMalpractice

You have a duty to use the standard and accepted practices of your profession.

You are guilty of malpractice if no reasonable person of your profession would have acted as you did.

Penalties are not limited by contract, may include treble damages.

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Requirements for a ProfessionRequirements for a Profession

1. extensive learning and training

2. code of ethics

3. disciplinary system for members

4. emphasis on social responsibility

5. license

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Negligence vs. MalpracticeNegligence vs. Malpractice

Negligence

– use reasonable care

– guilty if no reasonable person would have acted as you did

– penalties may be limited by contract

Malpractice

– use standard and accepted practices of your profession

– guilty if no reasonable person of your profession would have acted as you did

– penalties are not limited by contract, may include treble damages

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Cartoon of the DayCartoon of the Day

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Intellectual PropertyIntellectual Property

Case Study Introduction Patents Copyright Trade Secrets Open source Case Study Discussion

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Case StudyCase Study

(adapted from Intellectual Property Protection for Software Curriculum Module SEI-CM-14-2.1, by Pamela Samuelson and Kevin Deasey, July 1989)

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BackgroundBackground

Emily is an undergraduate student in software engineering at Module University. Emily has recently written a highly original and useful computer program for accounting functions used in small professional operations. Emily wrote the program to fulfill requirements of a course.

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Copyright Case StudyCopyright Case Study

Can Emily claim a copyright on the software?

Can another student reuse part or all of Emily's program?

Can another student reuse Emily's high-level or detailed design?

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Patent Case StudyPatent Case Study

Can Emily obtain a patent on the software?

If she obtains a patent, can she also copyright the software?

What if she wrote the software as part of a summer job for the university?

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Intellectual PropertyIntellectual Property

Case Study Introduction Patents Copyright Trade Secrets Open source Case Study Discussion

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PatentsPatents

Used for processes, machines, manufactures

Subject must be new, unobvious and useful

Grants owner exclusive right to make, use and sell for 17 years

Companies are entitled to patents on "work for hire" by employees

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CopyrightCopyright

Used for any writing or creation Subject must have been created by

copyright owner Grants owner (and heirs) exclusive right

to copy, distribute, make derivative works until 70 years after death of owner

Companies are entitled to copyrights on "work for hire" by employees

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Copyright Limitations -- Fair UseCopyright Limitations -- Fair Use

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

2. the nature of the copyrighted work

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole

4. the effect of the use upon the potential market for or value of the copyrighted work

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Digital MillenniumDigital MillenniumCopyright Act (DMCA)Copyright Act (DMCA)

Passed by congress and signed into law in 1998.

Prevents circumvention of Technological Protection Measures (TPMs)

Extends copyright protection 20 years

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Trade SecretsTrade Secrets

Used for formulas, patterns, devices Subject must be used for competitive

advantage in business, and must be maintained as secret

Grants owner exclusive right to enforce protection against fraud for as long as subject is secret

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Open SourceOpen Source

Free software ("free" as in "free speech", not as in "free beer")

Copyleft protects creator from having work stolen, obligates copiers to allow further copying

Open source movement leverages many like-minded developers through loose cooperation

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Intellectual PropertyIntellectual Property

Case Study Introduction Patents Copyright Trade Secrets Open source Case Study Discussion

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Case Study DiscussionCase Study Discussion

1. Divide up into groups of 4 or 5

2. Discuss your answers to the questions

3. Fill in your personal answers on the quiz

4. After I collect the quizzes, we will discuss the conclusions from each group

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Copyright Case StudyCopyright Case Study

Can Emily claim a copyright on the software?

Can another student reuse part or all of Emily's program?

Can another student reuse Emily's high-level or detailed design?

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Patent Case StudyPatent Case Study

Can Emily obtain a patent on the software?

If she obtains a patent, can she also copyright the software?

What if she wrote the software as part of a summer job for the university?