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Lets say Alice Co. writes a program, and Bob Co. hires a contractor to copy it, and put it on their platform?

What is the general legal recourse in these cases? I say general, because most of us are programmers, not lawyers, and we all understand we're not asking for qualified legal advice.

But generally.

What happens? Do you take them to court? What considerations should be taken? What gives you ground to stand on, and others nothing to stand on?

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Did Bob have access to Alice's code and copy it or did they reverse engineer the functionality of the program? –  JeffO Apr 21 '11 at 13:42
    
In this case lets assume the code is javascript sent over a webpage, making it very easy to pirate. This isn't something that has happened, it's a general question about legal issues. –  Incognito Apr 21 '11 at 14:17
    
Hiring a contractor to do the work is relatively irrelevant, it's like hiring someone to murder someone, you still get charged with murder. The focus should just be on the "copy" part as @Tangurena answer talks about. Though, if Bob just tells the contractor to "copy" it and are really vague about what "copy" means, then the legal argument would be over what did Bob mean by "copy". –  TruthOf42 Apr 16 at 14:00
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4 Answers

up vote 3 down vote accepted

You really need to have a discussion with a lawyer about this. I'm currently listening to the audio version of Bargaining With The Devil. In this book, IBM and Fujitsu were colliding in court and arbitration over copying of source code.

hires a contractor to copy it

  1. Copy the binary distribution?
  2. Reverse engineer the code from the executable?
  3. Duplicate the user interface?
  4. Perform the same tasks?
  5. Obtain a copy of the source code and copy that?

All 5 of those are different, and may not be torts in all jurisdictions. The first is usually a criminal matter, #2 may be merely a civil case over violating the license (almost all software licenses have a restriction against reverse engineering), and the third may or may not be a trademark issue. Numbers 3 and 4 might be patent violations, depending on country, patent and decade. And the fifth might be a copyright violation (or depending on how the copy was obtained, perhaps a criminal matter).

The legal system is littered with companies (and lawsuits) that you can look at to give some idea of how messed up things are. For example, SCO was convinced that IBM copied some of the source from Unix to put into Linux - so SCO wanted several billion dollars in damages. Or how Microsoft copied Stac Electronics' source code to place into DOS version 6, and the litigation took long enough that Stac's value as a company dropped to the point where it was cheaper for Microsoft to purchase the company than continue with the lawsuit (I suspect that SCO was also angling to have IBM purchase them, but they forgot that IBM fights legal battles to the death much like Walmart does).

What gives you ground to stand on, and others nothing to stand on?

There are too many variables to even begin to answer this question with anything less than a large book.

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Does Bob Co own the right to run it? If so, there's nothing wrong. If not, the contractor should refuse to do the work because it's illegal. But ultimately Bob Co would be legally responsible for the piracy.

Depending on the damages, taking them to court might of course be more expensive than doing nothing. But reporting it to anti-piracy watchdogs can help as those sometimes carry out raids of their own (and a company that pirates one thing can be expected to pirate much more, including stuff from companies that do have the funds to go to court over it).

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But what are the steps Alice Co. has to take to consider a product as "published"? Often Alice Co. has made the software especially for Bob Co's case. –  vstrien Apr 21 '11 at 13:34
    
in which case the contract would set out the restrictions on installing it. Most likely it would give either a number of allowed installations or ownership would transfer to the customer and there'd be no limits whatsoever. In both cases, where's the violation? OP never mentioned. –  jwenting Apr 21 '11 at 13:42
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enter image description here

Bob Go to Jail. Bob Go directly to Jail. Bob Do not pass GO. Bob Do not collect $200.

Source code is intellectual property, and like any property, taking it from its owner is illegal.

The problem is that Alice will have to prove Bob copied her intellectual property.

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Copyright violations are not usually criminal, but rather are handled in civil law. There are criminal penalties in some cases, but Alice would have to get the appropriate authorities interested in prosecuting, and as far as I know they only hit the big cases. It may be that all Alice has to do is show a likelihood that Bob violated copyright, and can use the discovery process to confirm. Consult a lawyer if this is of any real interest to you. –  David Thornley Apr 21 '11 at 13:47
    
@David Thornley: this is very real. Sergey Aleynikov, a former Goldman Sachs employee is in jail for that (8 years). Samarth Agrawal from Société Générale got 3 years. Others are in jail for the same reasons: William Genovese Jr, Gerald Hsu, ... –  user2567 Apr 21 '11 at 13:53
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Did anyone notice "(C) 1936 PARKER BROTHERS" in small print? :-) –  Stephen C Apr 21 '11 at 14:06
    
@Stephen C: don't tell them ;) –  user2567 Apr 21 '11 at 14:07
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The answer is copyright. If Alice, Co. produces a program, they presumably have the copyright on it. If Bob, Co. copies it, that's a violation of copyright, and Alice, Co. can sue over that, for damages and an injunction to stop Bob, Co. from further copying.

In the US, damages come in various kinds, but it's normally possible to sue for any harm Bob has done. There are additional things that Alice can ask for if Alice has registered the copyright on the program. (By the Bern Conventions, which most countries have laws conforming to, copyright exists without registration, but in the US there are benefits to registering.) It may or may not be possible to sue to recover legal costs.

The court order to stop doing that may be more important, if that's one of Bob's business strategies.

There are other possibilities I'm even fuzzier on. All disclaimers apply: I am not a lawyer, I don't even know what jurisdiction(s) you're talking about, this is not legal advice, I take responsibility for no consequences of following it, and relying on what I say in court or in other serious legal doings has an excellent chance of getting you what you deserve for something stupid.

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