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Is it legal to clone software functionality?

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In early November 2021, developers of a defunct photo app, Phhhoto, promoted one civil suit against Meta (then, Facebook) before the Us District Court for the Eastern District of New York which could spell the end of the software industry. Although the legal action concerns an accusation of unfair competition, the American judge will also have to decide whether the imitation of a feature is legal or not.

To understand the impact of such a decision, just think that if this principle passed, it would have been impossible for Microsoft create Word, for Google develop Chrome, or for Apple create Final Cut since the features were already available in legacy products.

What are software features
From a technical point of view, the functionality of a program is the what it does regardless of how it does it. So, for example, every client has the functionality forattach of files (freely replicable), but each one creates it by writing a different code (protected by law).

It is intuitive that it is unthinkable to claim, for example, the exclusivity on the file saving functionality or to argue that no program should contain the functionality for applying blur filters to images. So much so that software issues up to now have essentially concerned the abuse of source code and not that of features which, as such, are at such an abstract level that they cannot be legally protected.

What is copyrighted
In Italy, article 2 paragraph I number 8 of the law on copyright excludes from protection “the ideas and principles underlying any element of a program” and Article 45 of the Industrial Property Code (issued on European indication) excludes the protectability of mathematical methods (i.e. algorithms).

Why it’s important to keep features free
These principles are essential components of software development and have allowed the creation of a scientific, industrial and commercial ecosystem in which different souls, such as those proprietary, free or open source, have fueled (in various ways) the great processes of technological innovation of our time. To challenge them by stating that it is illegal to replicate software functionality means paralyzing an entire industrial sector and, above all, irreparably compromising the rights of citizens who will no longer be able to have freedom of choice.

Historical precedents
In fact, the attempt to impose a limit on the functionality replication of a program has distant origins. The story of Phhhoto and that of Business Competence (which will be discussed in a few lines) closely resemble the case lost in 1995 by Apple, which had accused Microsoft to have infringed the copyright on the Trash function, first used by Cupertino and replicated by the Redmond house in its operating system.

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The ruling clearly stated that “Apple cannot invoke such protection to the patent one for the idea of ​​a graphical interface or for the idea of ​​the metaphor of a desktop “. So, at least until now, on both sides of the Atlantic the rule is (fairly) clear. But the new civil lawsuit against Meta could drastically change the scenario.

The merit of the Meta vs Phhhoto case
The merit of the story is simple: the developers of Phhhoto claim that they were forced to close the company due to an act of unfair competition from Meta. Specifically, they accuse Meta of having copied the main functionality of their software (a burst of 4 photos to create an animation effect) as part of a broader anti-competitive strategy aimed at putting out of business subjects who benefited from Phhhoto’s interaction with Instagram. As they write on page 4 of complaint: first Facebook would have tried to include the app within Messenger and then, faced with the refusal, would have relaunched by proposing to incorporate the software into the News Feed degli utenti e alla fine avrebbe interrotto le trattative. Dopodiché “Facebook and Instagram embarked on a scheme to crush Phhhoto and drive it out of business. Among other anticompetitive acts directed against Phhhoto, Instagram withdrew interoperability previously provided to Phhhoto, changed Instagram’s longstanding third party content attribution rules to Phhhoto’s detriment, and introduced—with the anticompetitive intent and effect of harming Phhhoto rather than otherwise benefiting Facebook or Instagram—a market clone that copied feature-by-feature the Phhhoto product.”

In other words, according to the reconstruction of the applicants, when Facebook realized that he could not gain control over this app he would have made sure to block the interaction with Instagram, also launching, at the same time, a clone of Phhhoto, called Boomerang. The consequence would have been that users of Instagram, migrating to Boomerang, they would stop using Phhhoto causing it to go out of business.

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Business Competence vs Facebook: the Italian precedent
If the story of Phhhoto seems familiar to the Italian reader, it is because, in 2018, the court of Milan decided on a lawsuit in some ways similar against Facebook, a Milanese software house, Business Competence. Similarly to the Phhhoto story, Facebook had developed a software that replicated the functionalities and operating logic of the one created in Italy and of which the social network had had the availability for a prior technical check. In this way, its authors argue, the Italian software would have lost the possibility of making profits by relying on the users of the social network, now directed towards the competing program.

Similarities and differences between the two cases
The similarities between the two cases are, as mentioned, evident. However, the US lawsuit discusses the cloning of software features in terms of unfair competition while the Italian one addressed the controversy also in terms of copyright, which amplifies the potential economic and political consequences of a given way of applying the law.

From a general point of view, the two events raise two questions: to what extent the owner of a software has the right to block interoperability with other programs, and whether it is permissible to create an app that clones the functionality of another software pre-existing at the time. aim to make sure a competitive advantage. We do not yet know, of course, how the American court will decide, but we can draw some ideas by analyzing the decision of the Milanese one who agreed with the Italian software house as regards the legal protection of software functions.

The criticalities of the Milanese decision and the risks of the US sentence
According to the Italian judges, theaccess to sources to verify the functioning of a software and the way in which it interacts with data, because it is enough to analyze it from the outside.

In terms of abusive duplication of software or the creation of derivative works, this statement does not make much sense. To understand if a program has been copied or imitated, it is certainly necessary to analyze its source codes. If, however, the goal is to verify the replication of functionality, it is evident that there is no need to access the source codes because in a world populated by graphical interfaces, what matters is the design of the interaction and not the set of instructions that make it possible. But the interfaces, interaction design and functionality of a software are not protected by copyright law. It therefore seems that the court of Milan has confused two very different fields.

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The difference between copying (or reworking) a software and duplicating its functionality
In general terms, it can certainly be argued that accessing the sources of someone else’s software could constitute both illegal duplication and competitive advantage, but only if the codes were slavishly copied and reused to the detriment of the rights holder (a very widespread situation, especially in relation to library). On the contrary, the simple analysis of functionalities and their replication cannot be considered a violation of copyright nor, in fact, an act of unfair competition, unless this happens by brutally copying pieces of code. To understand the difference, just remember that the birth of Unix BSD Net / 1 and BSD Net / 2 was made possible by the rewrite by the Berkely University Computer System Research Group of the parties to which AT&T held the rights. The features were the same, not the way they were written.

The risks for the software ecosystem
The Business Competence vs Facebook case has opened a door to allow the essential elements of software innovation to enter the domain of copyright, which should remain free and Phhhoto vs Meta risks widening it. It is true that these are judicial events decided by different legal systems and on issues that are not entirely overlapping, but the decisions on high-tech causes they are taken also inspired by what the judges of other countries do. Therefore, there is a concrete possibility that a transversal interpretation on the extension of software protection to include areas that, on the other hand, are not regulated and should remain free, is formed.

If confirmed, the paradoxical effect caused by this orientation is to create the prerequisite to paralyze any project, perhaps open source, by invoking a sort of cloning of functionality.

It is a quick and efficient way to get rid of the competition, provided they can afford to bear the legal costs, which is not within everyone’s reach. But someone’s yes …


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