September 2012

How clean is your software clean room?

Under copyright and trade secrets laws as such laws apply to source code, if a person without permission copies the source code or misappropriates a trade secret contained within the code (such as know-how), that person is liable to the owner of the copyrighted code or the trade secret embodied within that code.

For purposes of proving such a claim of copyright or trade secret misappropriation, it is not necessary to prove that actual copying occurred.  It is sufficient to show that (1) the accused party had access to the code, and (2) the accused party's code is substantially similar to the claimant's code.  Thus, for an independent software developer, accessing competitive or substantially similar code is fraught with legal risks, especially in the situation in which the company is developing software with the same or similar functionality as that which exists in competitive products or existing third party code that the company has already licensed.  In order to avoid claims of breach of such terms or claims of infringement, it may be advisable to establish "clean room" software development policies.

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