CS 501: Software Engineering
Lecture 6
Legal Aspects of Software Engineering
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Administration
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Legal Environment
Software is developed in a complex legal and
economic framework.
Every software engineer needs to be aware of some
parts of the framework.
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Legal Topics in Software
• Jurisdiction (international, federal, state laws)
• Intellectual property (copyright, patent, trademark)
• Contracts
• Privacy
• Free speech and its limitations (government secrets,
obscenity)
• Complex areas (ISPs, e-commerce)
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Legal Change
• Changes in laws usually follow changes in technical world.
• Lawyers and politicians typically have poor technical
backgrounds
• Laws have often never been tested because of the cost of
litigation.
• Law usually develops incrementally. As a result, strange
analogies are often made between new technological
paradigms and old world systems
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Jurisdiction: Boundaries
• “The Internet has no boundaries”
• If you break a law in Finland, but you were on the
Internet in the United States, what happens to you?
• What if you are in California and you break a law in
Minnesota?
• Where do you pay taxes?
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Jurisdiction: Federal Court System
Jurisdictions:
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United States Constitution
International treaties
Federal and state statues
Precedents
• 13 Circuits, each with a court of appeals
• Supreme Court ultimate appellate court
• Jurisdiction can be a determining factor in case outcomes
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Copyright
Copyright applies to literary works.
Originally applied to textual materials, but gradually extended
to cover text, music, photographs, designs, software, ...
Copyright applies to the expression of ideas (e.g., the words
used), not to the ideas themselves, nor to physical items.
Software
Copyright applies to the program instructions, but not to
the concepts behind the instructions, nor to the files on disk
or on paper where the programs instructions are stored.
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Copyright
In the USA, copyright gives the owner exclusive right to:
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reproduce
distribute
perform
display
license
Special rules
• First sale (can sell an object, e.g., a book, without
permission of the copyright owner)
• Fair use (limited use without permission of the
copyright owner, e.g., in a review or short
quotation.)
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Ownership of Copyright (USA)
At creation
• Copyright is automatically owned by the creator.
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Except works for hire, where the employer owns
the copyright.
Transfer of copyright
• In the USA, copyright is property that can be sold
or licensed.
• The agreement to sell or license software is
written as a contract.
"A verbal contract isn't worth the paper it's written
on." (Attributed to Yogi Berra.)
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Ownership of Copyright
International differences
Moral rights
In some countries, e.g., Canada, France, the creator of
a work retains moral rights, which cannot be sold, for
instance the right of attribution.
Registration
In the USA, copyright is established automatically
when something is created. In many countries, it is
necessary for the creator to register it to claim
copyright.
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Derivative Software
When software is derived from other software:
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New code is owned by new developer
• Conditions that apply to old code apply to derived work
If you write S, which is derived from A, B, C and D, you can
not distribute or licenses S unless you have right to distribute
each of A, B, C and D.
To create a software product, you must have documented
rights to use every component.
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Software Copyright Questions
• You are employed for company X writing software.
When you leave, who owns your work? What use can
you make of the work?
• You work free-lance for company X. When you finish,
who owns your work? What use can you make of the
work?
• You are a student on CS 501. What you finish what use
can you make of your project work? What use can
Cornell make of it? (Answer: At Cornell students own
the copyright in the work that they do for their classes.)
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An Old Exam Question
When software is written, who owns the copyright?
How can somebody else be permitted to use the software?
How can copyright be transferred to somebody else?
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An Old Exam Question
When software is written, who owns the copyright?
The person who writes the software
Except works for hire, where the employer owns copyright
How can somebody else be permitted to use the software?
By permission from the copyright owner
(usually a license)
How can copyright be transferred to somebody else?
Copyright is property that can be sold or given away
(usually a contract)
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An Old Exam Question
You are employed for company X writing software.
When you leave, who owns your work?
What use can you make of the work?
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An Old Exam Question
You are employed for company X writing software.
When you leave, who owns your work?
The company (work for hire)
What use can you make of the work?
None, without permission of the copyright owner.
(Perhaps some minor use under "fair use".)
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An Old Exam Question
You work free-lance for company X.
When you finish, who owns your work?
What use can you make of the work?
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An Old Exam Question
You work free-lance for company X.
When you finish, who owns your work?
It depends on the circumstances.
Have a written contract.
What use can you make of the work?
If you hold the copyright -- unrestricted.
Otherwise -- none without agreement.
(Perhaps some minor use under "fair use".)
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Contracts and Licences
Contracts allow intellectual property to be sold or licensed
• Promise in exchange for some consideration (e.g., money)
• Written document with signature
• Permanent or temporary, whole or part
• Exclusive or non-exclusive
• Termination, problems and difficulties
• Terms and conditions as agreed
• Enforceable by courts
For simple agreements, an exchange of letters is a
convenient form of contract.
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Patents
Patents apply to inventions
• Should be: non-obvious, novel, useful
• Requires a complex process of patent application
• 17 years from award (20 years from application)
Copyright applies to the expression of ideas, patents to the
ideas themselves.
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Software Patents
Problems with software patents
• Poor quality of examining can lead to broad patents for
routine computing concepts
• Usually difficult to know where ideas originate
• International differences
The situation is a serious mess!
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Trade Secrets and Non-Disclosure
Agreements
Trade Secret
"... information, including a formula, pattern, compilation,
program, device, method, technique, or process that derives
independent economic value from not being generally known
and not being readily ascertainable and is subject to reasonable
efforts to maintain secrecy."
Uniform Trade Secrets Act
Example: Microsoft source code
Non-Disclosure Agreement
Legal agreement not to disclose trade secrets.
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Trade Secrets
• A trade secret does not expire - as long as it is kept secret
• Competitors may not use secrets obtained through
extraordinary means
• If you learn trade secrets when working for one employer,
you must not disclose them to another employer.
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Your Next Job ...
• Employment contract may restrict your next job (not
working for competitors, etc.)
• Trade-secret information (non-disclosure agreement)
• Contamination (knowledge of trade secrets may prevent
you working on similar projects for others)
Ask when you are interviewed!
Read the contract!
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Trademark
• Specific name or phrase
• Unique within a line of business, in a specific country
(e.g., only one electronics firm called Apple in the USA,
but could be a shipping line called Apple in the USA or a
different electronics firm called Apple in another country.)
• Generic terms cannot be trademarked
• Trademarks can be lost if they are not defended
– Lost trademarks: aspirin, kleenex
– Held trademarks: Coke, Pepsi
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Privacy
Invasions of privacy:
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intrusion
appropriation of name or likeness
unreasonable publicity
false light
Be very careful about collecting personal
data without the knowledge of the individual
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Public or Private Information?
• A lot of public information is considered private.
• An increasing amount of public information available on
the Internet
– Reverse phone lookups
– Campaign Contributions
– Housing prices
– Driver’s license information and photographs
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Privacy in E-mail
• Legally, e-mail is like a postal letter
– Expectation of privacy in transit
– Mail loses its special protected status once it leaves the
letter carrier's grasp
• For e-mail,
– Expectation of privacy while signal travels over
Internet
– E-mail loses its protected status at the mail server
whether you have read it or not
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Privacy in the Workplace
• Test for employers/employees - “Do you have a reasonable
expectation of privacy?”
• Work-related material on business machines is definitely not
private.
• Some organizations, e.g., most universities, treat private email on business machines as private, but this is not the law.
Never send anything by email that you would not be
prepared for your employer to see.
As a software engineer, you may come across other people's
private information. Keep it private. If in doubt consult your
supervisor.
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Business E-mail
• Electronic Communications Privacy Act (1986) says all
business communication belongs to that business.
• Deleting e-mail can be ruled spoliation (intentionally
destroying company records).
• An archive is worthless if it cannot be indexed effectively
(in effect, saving everything can be equivalent to saving
nothing).
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Free Speech
In the USA, the First Amendment protects many aspects of
free speech, including news reporting, religious expression,
etc., but their are major exceptions (e.g., state secrets,
defamation, obscenity, racial hatred.)
In the USA, some aspects (e.g., obscenity) are governed by
state laws with big differences among states.
Laws in other countries may be very different (e.g.,
blasphemy, criticism of the government).
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Special Situations
Internet Service Providers
• transmit and store intellectual property that they do not own
• a special (complex) legal framework protects them
• if you run such a service, you need a knowledgeable lawyer
E-commerce
• e-commerce operates across jurisdictional boundaries
• data is subject to various laws of privacy, security, taxation,
etc.
• if you run such a service, you need a knowledgeable lawyer.
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Practical Advice
• It is often useful to read the text of a law.
• A good source is the Cornell Legal Information Institute:
http://www.law.cornell.edu/.
• But do not try to interpret the law by yourself. You may be
reading the wrong law, or not know how it has been
interpreted by the courts.
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Practical Advice
Be aware of the law, but do not pretend to be a lawyer.
Use a professional for:
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Contracts and licenses (unless very simple exchange
of letters)
• Troubles (complaints, injunctions, subpoenas, etc.)
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Personnel issues
• When in doubt, ask help!
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