Two international companies. An accusation of plagiarized software. A court trial. Two expert witnesses who offer directly conflicting opinions. A judge who has never owned a computer must decide who’s right.
Just a few years ago, the experts’ testimony would have been the only technical evidence the judge would have considered. But now a third point of view is available: that of a sophisticated software forensics program. By interpreting the program’s results, an expert computer scientist can give a definitive, quantitative answer.
In recent years, litigation over software in the United States and elsewhere has skyrocketed. Partly that’s due to the 1998 case State Street Bank & Trust v. Signature Financial Group, which established that most kinds of software are patentable. Partly it’s due to the fact that you can easily and surreptitiously make a copy of copyrighted source code and put it on a flash drive or send it by e-mail. And partly it’s due to our increasing reliance on computers and the increasing value of the software that runs our businesses and our equipment.
Clearly, it’s in society’s best interest to resolve these lawsuits as efficiently and equitably as possible. But settling such disputes can get exceedingly technical, and few people have the expertise to parse source code—the human-readable form of a program—to determine what, if anything, has been illegally reproduced. A program that runs something as simple as a clock radio can have thousands of lines of code; a more complicated device, such as an airplane, can have millions. That’s why automatic software forensics tools are so useful. Just as software for analyzing DNA has become crucial in resolving criminal cases and paternity suits, tools that can quickly and accurately uncover illicit software copying are becoming key to copyright infringement litigation.
Detecting illegal copying without the aid of forensics software can be like finding the proverbial needle in a haystack. In one high-profile case that some colleagues of mine worked on, Cadence Design Systems, one of the largest developers of software for electronic design automation, sued Avanti Corp., a much smaller competitor. As is common in the tech business, Avanti had been founded by high-level engineers and executives who’d previously worked for Cadence.
In the mid-1980s Cadence introduced a product called Symbad for laying out the physical structure of integrated circuits. In a surprisingly short time Avanti came out with its own circuit-layout program, called ArcCell. Not only did the product development time seem too short, but a Cadence engineer noticed that ArcCell exhibited a very strange bug that was identical to a bug in Symbad. Given these suspicious circumstances, Cadence filed a motion with the court and convinced a judge that there was reason to believe its software copyright had been infringed.
Avanti had a lot of financial backing, though, and so it was able to delay the trial for some years. By the time the case reached the discovery phase, during which attorneys turned over relevant documents, including source code, to the opposing side, Avanti’s software had gone through many revisions.
At that time, no sophisticated forensics software yet existed that could spot illegal copying. Teams of experts spent months manually poring over the code, but they found few signs of copying. Eventually, though, they turned up one curious comment in both programs. The comment was a description in which a single word was spelled incorrectly. It was known that some of the same programmers had worked on both programs, which is completely legal as long as the programmers don’t literally copy the code. Perhaps one of them wasn’t a very good speller.
But this comment stood out. What were the chances that the same misspelling would show up in the same comment in nearly identical positions in both programs? Practically zero. Based largely on that seemingly tiny concurrence, Avanti lost both the civil and criminal lawsuits, and several of its executives went to jail. After paying fines that effectively put it out of business, what was left of Avanti was bought by a Cadence rival, Synopsys.
In that case, justice prevailed, but much of the time and expense involved in trying the case could have been avoided with forensics software.