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According to French law, software is protected by copyright. If the legal system protects software against counterfeit, parasitism and unfair competition, it forces to establish an evidence that it was copied or used unlawfully.
In the domain of intellectual property disputes, the resolution of a conflict requires to establish: (i) the counterfeit, i.e. the existence of non-fortuitous similarities between two sets of code, two architectures or two concepts, (ii) the ownership of the software, in other words, the filiation between the counterfeited code and its protected version.
Establishing the proof of the counterfeit and of the software filiation is based on a process of code comparison.
Difficulty of evidence
Establishing evidence can present major challenges, for the victim who must ascertain it unequivocally, for the defendant who wants to demonstrate its good faith, and finally, for the judge who must settle the dispute after having considered evidences and arguments of the parties.
Software can have been copied slavishly, but the plagiarism can also have been disguised by, for example, systematically modifying variable names and comments, or "improved" to offer richer functionality or better performance, or rewritten while presenting copycat functionalities and ergonomics.
In these cases of "intelligent" counterfeiting, the “substantial similarities” are much more complex to establish and to expound to legal professionals than in the case of literal similarities.This situation creates legal uncertainty.
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Comparative Analysis of codes
EsaLab has designed and developed a suite of software tools, the SIMILE workshop, to carry out comparative analysis of software.
SIMILE is compliant with the AFC (Abstraction, Filter, Comparison) test method conceived in 1992 by MIT Professor, Dr. Randall Davis, in the Computer Associates v. Altaï case.
The SIMILE software workshop recognizes major computer languages including C, C++, JAVA, PHP, Perl, JAVAscript, ASP, and VisualBasic,..
As ESALAB’s tool relies upon a systematic and comprehensive process based on a scientific approach, it is provided an objective comparative analysis of two sets of code.
The pre-diagnostic process
The diagnosis is a preliminary assessment of the extent and nature of similarities, before committing to comprehensive and more expensive investigations. Whenever possible it will also provide an estimate of the cost to perform a complete comparison of codes. SIMILE.DIAG uses algorithms that search for similarities and that were initially developed for bio-technology data processing.
Code comparison
The comparison includes building models of the observed codes, analyzing their structure, performing literal, syntaxic or semantic comparisons, and, finally, producing a structured report that satisfies the needs of the judge and of the parties.
Risk Management Consulting
EsaLab’s activity implies specific competence in the areas of software intellectual property and of licensing agreements, in particular as it relates to Open Source software for which the legal status is still a source of conflicts. EsaLab has the ambition of becoming the reference in the management of counterfeiting risks and the protection of software IP investment.
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