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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:

• 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:

• 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.

• 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:

• 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 softwareExcept 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:

• 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 e-mail 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:

• Contracts and licenses (unless very simple exchange of letters)

• Troubles (complaints, injunctions, subpoenas, etc.)

• Personnel issues

• When in doubt, ask help!