Legal Issues in
Software
CS 415, Software Engineering II
Mark Ardis, Rose-Hulman Institute
April 11, 2003
DISCLAIMERS
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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Outline
Lawsuits
 Intellectual property

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Lawsuits
Negligence
 Malpractice

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Negligence
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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Malpractice
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 Profession
1.
2.
3.
4.
5.
extensive learning and training
code of ethics
disciplinary system for members
emphasis on social responsibility
license
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Negligence 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 Day
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Intellectual Property
Case Study Introduction
 Patents
 Copyright
 Trade Secrets
 Open source
 Case Study Discussion

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Case 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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Background
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 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 highlevel or detailed design?

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Patent 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 Property
Case Study Introduction
 Patents
 Copyright
 Trade Secrets
 Open source
 Case Study Discussion

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Patents
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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Copyright
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
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"work for hire" by employees

Copyright Limitations -- Fair Use
1.
2.
3.
4.
the purpose and character of the use,
including whether such use is of a
commercial nature or is for nonprofit
educational purposes
the nature of the copyrighted work
the amount and substantiality of the portion
used in relation to the copyrighted work as a
whole
the effect of the use upon the potential
market for or value of the copyrighted work 19
Digital Millennium
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 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 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 Property
Case Study Introduction
 Patents
 Copyright
 Trade Secrets
 Open source
 Case Study Discussion

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Case Study Discussion
1.
2.
3.
4.
Divide up into groups of 4 or 5
Discuss your answers to the questions
Fill in your personal answers on the
quiz
After I collect the quizzes, we will
discuss the conclusions from each
group
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Copyright 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 highlevel or detailed design?

25
Patent 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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