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Reproduce software product avoiding copyright infringement - is it possible?

by feodor24
5 replies
Dear all,

I got a pretty handy utility installed on my PC which I use constantly during my daily activities. It's an abandonware (latest version has been released in 1999) but the software company that produced it back then is still in this business.

I wonder whether it's possible to reproduce it for commercial purposes without breaking the copyright. By "reproduce" I mean writing my own code from scratch so that the final product of mine could have the same features as the original program (plus some extras) without any reverse-engineering or something like that (i KNOW how it works and understand how to implement it in code).

I checked the US copyright laws but still cannot figure out if there's any differenct between copyright infringement and competing product with some extra features added. If it's possible to avoid infringement, please tell me what's the necessary level of changes to be applied.

Thanks!
#avoiding #copyright #infringement #product #reproduce #software
  • Profile picture of the author Don Schenk
    You really do need an attorney to answer your question. Any information you get here at the WF about an issue of law is useless unless it is given to you by one of the attorneys who happen to post here at times.

    Someone could give you their opinion, be completely wrong, then you are the one who gets sued. It is not worth the chance.

    Maybe the company that owns the copyright will let you obtain resale rights or work an affiliate deal with you.

    :-Don
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  • Profile picture of the author ARVolund
    Originally Posted by feodor24 View Post

    Dear all,

    I got a pretty handy utility installed on my PC which I use constantly during my daily activities. It's an abandonware (latest version has been released in 1999) but the software company that produced it back then is still in this business.

    I wonder whether it's possible to reproduce it for commercial purposes without breaking the copyright. By "reproduce" I mean writing my own code from scratch so that the final product of mine could have the same features as the original program (plus some extras) without any reverse-engineering or something like that (i KNOW how it works and understand how to implement it in code).

    I checked the US copyright laws but still cannot figure out if there's any differenct between copyright infringement and competing product with some extra features added. If it's possible to avoid infringement, please tell me what's the necessary level of changes to be applied.

    Thanks!

    While I generally agree with the whole check with a lawyer thing.

    How many different browsers are there?
    How many different anti virus programs are there?
    How many Operating systems are there?
    How many third person shooters are out there?

    Go to any download site and you can see competing types of software everywhere, sometimes hundreds of the same type

    As long as you write the code yourself and do not scrape it from the existing product there is nothing wrong with making a competing product. You also want to make sure you come up with a good available name as well. That can be somewhat tricky if you are are careful.
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  • Profile picture of the author Johnny Slater
    You can't copyright an idea, only the source code that makes the idea work.

    As long as you write a program from scratch that does the exact same thing, but doesn't use any of their source code then you are legal.

    If it was illegal there would be only one operating system, one membership script, one word processor program, one cell phone, one car, one console gaming sytem, one browser, etc.
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    • Profile picture of the author zeidman
      Hi feodor24,

      I'm not a lawyer, but I'm an expert in software intellectual property cases. The answer is really simple. Copyright infringement of the code will only occur if you copy any of the source code (or use it as a reference while you're writing your own code). If you don't have the source code (or you have it but don't use it to write your program), you can write your own program without violating any copyrights at all. You can even decompile the code, reverse engineer it, learn how the program works, and write your own program as long as you don't actually copy any of the source code or use it directly as a reference. The legal precedent for this was set in the cases of Atari Games v. Nintendo and Sega v. Accolade. Of course, you must be careful not to accidentally copy any source code. If you're planning to sell your program and you do reverse engineer the code, I would recommend using a clean room process to develop the code.

      The design of program screens can also be copyrighted. However, most screens are generic and you should be able to implement your own screens as long as you don't use any of the other program's unique graphics.

      The things that you can run into problems with are patents. If the company has a patent on its software and you use the same methods, you can infringe their patent. It's fairly easy to look up patents on Google or the US Patent and Trademark site.

      If you want to learn more, you may find my book useful: The Software IP Detective's Handbook: Measurement, Comparison, and Infringement Detection.

      Good luck.

      -Bob
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      • Profile picture of the author StevePatentAttorney
        I agree with Bob. Copyright law covers the source code as a particular *expression* of an idea and patents cover the functionality of the software.

        I'm an IP attorney and former software engineer, so I handle a lot of software related cases.

        Just to give an example of the difference. When registering a copyright for software, I include a source code listing or at least part of the listing. When patenting software, I never include a code listing.

        The standard for copyright infringement is whether a copy is substantially similar to the original work. There are some other legal tests used for software, but generally if you do not directly copy the source code you should be OK. Even if your version turns out to be very similar, if you created it without referring to the other company's source code you may be OK because independent creation is a defense to copyright infringement. (it is not a defense to patent infringement).

        Bob is right about watching out for the patents that may cover the functionality of the software. You should be able to check the help or about information for the earlier software to see if it was patented at that time. If it was, the company would have needed to mark the software with the patent number. When looking to see if it was patented, try searching on the company name as assignee (or owner) of the patent.

        Steve

        PS, Bob, I've seen your book online before and it looks interesting. I'm going to have to get a copy.
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        Steve Aycock, Patent Attorney
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