Can You Get Sued For Copying Code


Can You Get Sued For Copying Code
Can You Get Sued For Copying Code

Today I want to go over a very controversial topic that has been going on forever in the US the last 20 years with the rise of software technologies. As we enter the automation age where AI will prevail the never ending question of someone copying code may become a problem. As you can image who will end up suing an AI system that we don’t know the owner? Who will even be able to identify the source of the originator or the presence of where your code lives at?

The obvious point is that legal concerns often arise from all of the above. For both developers and users of software products, one question has always been a matter of concern: can you get sued for copying code? In this article, we will dive into this topic from different angles and explore varying aspects related to intellectual property law, infringement suits, and protections for creators and users alike.

Copyright Law and Software Protection

Understanding legal frameworks surrounding intellectual property is crucial for navigating the world of software development. Copyright law plays a significant role in protecting various forms of original work, including software code. Under U.S. copyright law, computer programs are considered literary works, and as such, they’re afforded protection similar to books and other written creations.

One notable case that demonstrates copyright protection for code is Oracle America Inc. v. Google LLC. In that litigation, Oracle claimed that Google had infringed upon its Java SE platform’s API declarations by using them in Google’s Android operating system. Although Google argued fair use, the jury ruled in favor of Oracle, proving that code does fall under copyright law.

  • Computer programs are eligible for copyright protection
  • Legal implications arise when similarities in code are found
  • Infringement can lead to costly lawsuits and damage to reputation

Later in this article we will analyze in more detail this case.

Limits of Copyright Protection

Despite the broad protection offered by copyright law, not every piece of code can be protected. It is essential to understand how the law distinguishes between protectable and unprotected elements within a software program. The idea-expression dichotomy is particularly relevant in this context, where copyright law only covers the specific expression of an idea, rather than the idea itself.

Take Tetris, for instance. While the concept of falling blocks cannot be copyrighted, the specific code that performs this action in Tetris can be. Being aware of the limitations of copyright protection is crucial to developers who wish to avoid potential infringement lawsuits.

  • Idea-expression dichotomy limits what can be protected
  • Concepts are not covered; only specific expressions are
  • Savvy developers must understand how to innovate without infringement
  • When it does occur you need to be cautious when reaching to a conclusion because even the slightest edit in the code changes the ball game

Patent Law and Software Protection

Another avenue for software protection comes from patent law. Patents are granted by the United States Patent and Trademark Office (USPTO) for inventions that meet particular criteria, including being novel, non-obvious, and useful. Unlike copyrighted code, patented software is protected whether or not it is expressed in a written work.

For example, Amazon’s “1-Click” feature has been patented so that other companies cannot create a similar tool to expedite online purchases. Navigating patent law is another piece of the puzzle for software developers to consider when aiming to prevent infringement disputes.

  • Patent law can protect innovations beyond the expression of an idea
  • Developers need to be mindful of existing patents before building their product
  • Creating a unique and non-infringing innovation can be challenging, but necessary

Infringement and Substantial Similarity

Copyright infringement occurs when a copyrighted work is copied, distributed, or performed without permission from the author or owner. With regard to code, infringement occurs when someone copies, modifies, or distributes the protected work without proper authorization. A critical component in determining infringement is establishing “substantial similarity,” which means that the copied code must be very similar to the original while taking into account the expressive elements and disregarding functional aspects.

For instance, Microsoft sued a software developer, claiming that their software illegally replicated the look and feel of Microsoft’s calendar application. By demonstrating the significant similarities in appearance and overall functionality between the two programs, a jury found the defendant guilty of copyright infringement.

  • Unauthorized copying, modifying, or distributing code can lead to infringement
  • Establishing substantial similarity is crucial
  • Analyzing both expressive and functional elements is essential

While the Microsoft example above isn’t that representative it does go to show you that it can end up a big problem particularly when AI is involved in the above scenarios.

Fair Use Doctrine

The concept of “fair use,” though frequently misunderstood, allows for the use of copyrighted material under certain circumstances without obtaining permission. Courts typically examine four factors to determine fair use: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the market for the copyrighted work.

Take the case of Sega v. Accolade, wherein Accolade reverse-engineered Sega’s game console to develop compatible games. The court ultimately found Accolade’s use of Sega’s copyrighted code to fall under the umbrella of fair use, allowing the company to avoid legal repercussions ultimately.

  • Fair use doctrine may justify copying code in certain circumstances
  • Courts must analyze the four factors to determine if the use is fair or not
  • The rationale behind the use plays a crucial role in the court’s decision

Open Source Licenses

Developers seeking protection from legal disputes can turn to open-source licenses. These licenses grant users the right to study, share, and modify software while safeguarding the original creator’s copyright protections. Open-source licenses vary widely in their conditions, with some remaining quite permissive (e.g., MIT License) and others imposing more substantial restrictions (e.g., GNU General Public License).

An example of successful open-source collaboration is the development of Linux, a widely recognized operating system. Using the GPL License v2, the source code was made available to developers worldwide, fostering innovation and advancement yet maintaining legal protection for creators.

  • Open-source licenses provide solid legal foundations for collaborative work
  • Varying license types allow for control over the level of permitted usage
  • Collaboration and sharing are encouraged while protecting intellectual property

I have gone into more details about GPL on another article which you can find referenced below in the related section.

The Risk of Inadvertent Copying

Inadvertent copying of code is an area fraught with potential legal issues. Independent creation—the notion that two individuals or entities inadvertently created identical or near-identical works without knowledge of one another—does not generally offer immunity from copyright infringement claims under U.S. law.

One prominent case involved Apple Inc. suing Microsoft Corporation on grounds that Microsoft’s Windows 2.03 infringed upon Apple’s MacOS graphical user interface. While Microsoft claimed independent creation, courts found elements of infringement and ultimately ruled in favor of Apple.

  • Independent creation is no shield against copyright infringement claims
  • Understanding potential pitfalls can preemptively protect companies against lawsuits
  • Detailed analysis and documentation can help in defending an independent creation claim

Defensive Measures Against Infringement Claims

Proactively taking steps to protect against legal disputes can help developers and companies safeguard their work. These include close monitoring of patent portfolios, regular updating of copyrights, and utilizing defensive publishing to make information available publicly and prevent it from being patented.

A prime illustration of a proactive measure against legal risks is IBM’s practice of establishing a complex web of technology licenses among companies. By engaging in cross-licensing agreements, IBM ensures protection for its intellectual property while also accessing innovations made by others.

  • Proactively manage and monitor intellectual property holdings
  • Make use of various protective measures, such as defensive publishing
  • Cross-licensing agreements benefit all parties involved

Preventative Measures

To avoid potential lawsuits, several preventative measures can be employed, such as:

1. Conducting thorough internal audits
2. Establishing software development guidelines and protocols
3. Ensuring proper licensing documentation for open source code
4. Implementing employee training and education programs
5. Regularly monitoring the market and competition
6. Consulting with legal counsel when necessary

These steps not only protect developers from unwittingly stepping into legal minefields but also foster an environment conducive to creativity and innovation.

Risk Management Strategies

Risk management strategies, meticulously crafted, can work effectively in mitigating potential infringement claims. Organizations should consider options such as the adoption of legally vetted development frameworks, thorough code review practices, and obtaining intellectual property insurance coverage.

Look no further than Cisco Systems’ response to the ever-changing landscape of computer networking technologies. Cisco employs significant resources dedicated to analyzing its own products, identifying potential legal landmines, and working proactively to resolve any issues before controversies are ignited.

  • Be proactive in assessing and mitigating possible infringing activities
  • Employ best practices for code analysis and documentation
  • Strategize to minimize risk exposure with insurance and smart partnerships

Negotiating Before Legal Action

If faced with an infringement allegation, considering negotiations before initiating legal action might save money and time while maintaining professional relationships. This can involve tactics like reaching licensing agreements or acquiring rights to the disputed property without resorting to drawn-out courtroom battles.

For example, Apple Inc. and Nokia agreed to settle a long-standing dispute over patent infringement, with both companies agreeing to share their technologies in a multi-year licensing agreement that benefited both parties without taking matters to court.

  • Negotiation can be more cost-effective than litigation
  • Explore alternatives to resolve disputes amicably
  • Maintain professional relationships and foster future collaborations

Derivative Works and Reverse Engineering

A derivative work is one that adapts, translates, or incorporates portions of an original work, creating a new work with independent copyright protection. Copyright owners maintain exclusive rights to create derivatives, meaning unauthorized creation of such works may constitute infringement.

Though deemed controversial, reverse engineering—the process of deconstructing a product to understand its functionality, often leading to the creation of derivative works—is generally permissible under U.S. copyright law, provided it does not involve unauthorized copying or distribution of code.

IBM successfully sued Papermaster, a former employee who joined Apple and allegedly utilized IBM’s copyrighted code. Papermaster settled by paying damages and adhering to a non-compete clause in his contract, further highlighting the potential consequences of creating derivative works without permission.

  • Derivative works grant independent copyright protection
  • Unauthorized derivatives can lead to infringement claims
  • Reverse engineering is allowed but should not involve unauthorized copying

Trade Secrets and Code Copying

Trade secrets are proprietary information, processes, or techniques that give a company a competitive advantage while remaining confidential. If a programmer copies code that constitutes a trade secret, they could potentially face litigation.

In a celebrated case, Waymo accused Uber, a ride-hailing service, of stealing trade secrets related to the development of self-driving vehicles. Eventually, the two companies reached a settlement, proving that copying code containing trade secrets can have significant legal ramifications.

  • Trade secrets offer a competitive advantage and remain confidential
  • Copying code containing trade secrets can lead to litigation
  • Protecting proprietary information is crucial for businesses

Existing Court Cases in US For Copying Code

Lets cover some cases that already happened and analyze them.

Oracle America, Inc. v. Google, Inc., 765 F.3d 1351 (2014)

  • In this high-profile case, Oracle sued Google for copying portions of its Java Application Programming Interface (API) declarations in the creation of Android OS.
  • The Federal Circuit Court ruled that APIs could obtain copyright protection and initially ruled in favor of Oracle, while acknowledging that Google’s use did not satisfy fair use criteria.
  • This decision was appealed to the Supreme Court, where they reversed the lower court’s ruling in 2021, finding that Google had engaged in fair use.
  • The Supreme Court reasoning was primarily based on Google’s transformative use of the code and the fact that reusing API declarations could benefit the general public good.
  • Although Google eventually won this case, it serves as an example of how copying code can lead to costly litigation.

Apple Inc. v. Samsung Electronics Co., Ltd., 596 F. App’x 35 (Fed. Cir. 2015)

  • This multiple-lawsuit case involved several intellectual property disputes, including software code infringement.
  • Apple accused Samsung of infringing on its patented utility methods and copying design elements from the iPhone’s software.
  • During the litigation, it was discovered that Samsung had used code snippets taken from an iPhone application.
  • The court ultimately ruled in favor of Apple and awarded them significant damages.
  • This case demonstrates how software code is a valuable asset and protected by intellectual property laws.

SAS Institute Inc. v. World Programming Ltd., 874 F.3d 370 (4th Cir. 2017)

  • SAS sued World Programming for creating a software product that replicated functions of the SAS system’s programming language and environment.
  • World Programming’s software could execute code written originally in the SAS language.
  • The Fourth Circuit Court relied on precedent set in Oracle v. Google, as this was another API-related case.
  • The court sided with SAS, stating that World Programming’s copying of code went beyond functional purposes and thus violated copyright law.
  • This decision demonstrates how courts are considering the purpose and extent of code copying to determine if there’s a legitimate basis for infringement claims.

Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008)

  • In this case, plaintiff Jacobsen accused defendant Katzer of unlawfully copying code from his open-source model railroad control software.
  • Katzer’s violation did not merely consist of copying code, but also failure to abide by the terms within the open-source license.
  • The Federal Circuit held that open-source licenses, like other copyright licenses, can be legally binding and enforceable.
  • This decision highlights the importance of adhering to the specific terms outlined within open-source licenses.
  • It also emphasizes that even open-source code has legal protections against unauthorized use when the terms are not respected.

Microsource, Inc. v. Utopiasoft, Inc., No. CIV.A.1:08CV1809(JOM, 2009 WL 10676950 (D.N.J. Apr. 21, 2009)

  • The plaintiff, Microsource, sued the defendant, Utopiasoft, for taking portions of code from its check cashing software and integrating it into a competing product.
  • It was demonstrated that Utopiasoft had accessed and copied substantial segments of Microsource’s software, thus violating its copyright.
  • In addition to damages for copyright infringement, the court also awarded Microsource attorney’s fees based on the defendant’s bad faith and willfulness.
  • This case demonstrates how deliberate copying can lead to severe financial penalties.
  • It also illustrates that actions may constitute copyright infringement even when only some portions of the code are copied.

Articulate Global, Inc. v. Hoffman, No. 08 Civ.4501(KMW), 2010 WL 7438623 (S.D.N.Y. Feb. 18, 2010)

  • Articulate, a software company, sued former independent contractor Hoffman, accusing him of copying its software code and creating a competing product.
  • During litigation, it was established through forensic analysis that Hoffman had indeed copied code directly from Articulate’s software during his time as an independent contractor.
  • The court found that the ease and speed at which Hoffman developed and released his competing product provided further evidence that he copied copyrighted code.
  • As a result, the court determined that Hoffman had committed copyright infringement and awarded damages to the plaintiff.
  • This case shows that individuals, such as independent contractors or employees, can be held liable for unauthorized code copying.

SEB S.A. v. Montgomery Ward & Co., 732 F.2d 733 (9th Cir. 1984)

  • SEB sued Montgomery Ward for copying code from its electric space heaters in order to create a competing product.
  • The court found that Montgomery Ward had indeed copied the code, thereby infringing on SEB’s copyright.
  • In this case, the court considered the originality and creativity of the copied software to establish a violation of the copyright law.
  • It also emphasized the importance of safeguarding one’s trade secrets through confidentiality agreements or other protective measures.
  • This older case demonstrates that even non-software related products with embedded software can be the subject of copyright infringement lawsuits.

Eng’g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335 (5th Cir. 1994)

  • Engineering Dynamics accused Structural Software of copying its copyrighted engineering software.
  • The plaintiff demonstrated that Structural Software’s program had copied substantial portions of their software code.
  • Despite claiming that their software was independently developed, the evidence against Structural Software established that copyright infringement had occurred.
  • Additionally, the court held that even copying non-literal elements, like structure and organization of the code, could amount to copyright infringement.
  • This case shows how courts will examine substantial similarity and consider both literal and non-literal components when determining infringement claims.

Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 609 F.Supp. 1325 (E.D.Pa. 1985), aff’d, 797 F.2d 1222 (3d Cir. 1986)

  • In this well-known case, Jaslow Dental Laboratory copied the structure of Whelan Associate’s dental management software but altered the source code language.
  • The lawsuit centered around whether copying the program’s structure without literally copying the code constituted copyright infringement.
  • The Third Circuit upheld the district court’s ruling, finding that copying the non-literal elements of a software program could indeed infringe on copyright.
  • This case established an important precedent for determining whether copyright infringement has occurred even when literal copying is not present.
  • It also reinforces the importance of obtaining permission or licensing agreements before utilizing similar program structures.


Navigating legal concerns related to copying code can be both confusing and daunting. However, understanding the intricacies of intellectual property law, potential defenses like fair use, and proactive measures can help developers and businesses make educated decisions to prevent costly litigation. In the end, creativity and innovation are what drive software development forward; keeping a mindful eye on one’s own creations and respecting the work of others in the industry is crucial for success.

The complexities surrounding intellectual property law make it clear that copying code without authorization exposes individuals or entities to the risk of being sued. To avoid such outcomes, respecting the rights of authors, adhering to licensing requirements, and implementing solid preventative measures is essential in fostering an environment that promotes creativity and serves the best interests of everyone involved in software development.



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