Software Dissassembly

If you are worried about infringement or your work has been copied and you want to take action.
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CodeMonkey
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Software Dissassembly

Post by CodeMonkey » Wed Jul 26, 2017 7:41 pm

Hi

I wrote some software for a customer through a 3rd party over a number of years, it was an ever moving goal post type thing but I got paid and all was ok.

A few months ago the 3rd party informed me that I didnt have to worry about the customer anymore as they've found another solution, this I thought odd but accepted.

Now the 3rd party are not providing me with access to the customers system to check how things are going and I'm thinking they've decided to get their own developers involved having dissassembled my code and taken it on for themselves in order to gain further income without my involvement.

There was no contract, no statement of ip / copyright etc but it was my code that they have (potentially) stolen.

Just wondering should the above be the case then do I have any course of action available to me.

Thanks

CM

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AndyJ
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Post by AndyJ » Wed Jul 26, 2017 8:53 pm

Hi CodeMonkey,

I take it that the customer's system is running on a closed system so you can't even check its functionality to see if it is possible that your code being run in a modified form.

As you are probably aware it's perfectly legal to write software or some sort of interface which operates with pre-existing software, as outlined in section 50B of the Copyright Designs and Patents Act 1988):
50B Decompilation.

(1) It is not an infringement of copyright for a lawful user of a copy of a computer program expressed in a low level language—
  • (a) to convert it into a version expressed in a higher level language, or

    (b) incidentally in the course of so converting the program, to copy it,
(that is, to “decompileâ€￾ it), provided that the conditions in subsection (2) are met.

(2) The conditions are that—
  • (a) it is necessary to decompile the program to obtain the information necessary to create an independent program which can be operated with the program decompiled or with another program (“the permitted objectiveâ€￾); and

    (b) the information so obtained is not used for any purpose other than the permitted objective.
(3) In particular, the conditions in subsection (2) are not met if the lawful user—
  • (a) has readily available to him the information necessary to achieve the permitted objective;

    (b) does not confine the decompiling to such acts as are necessary to achieve the permitted objective;

    (c) supplies the information obtained by the decompiling to any person to whom it is not necessary to supply it in order to achieve the permitted objective; or

    (d) uses the information to create a program which is substantially similar in its expression to the program decompiled or to do any act restricted by copyright.
(4) Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void).
Additionally section 50BA allows a more general observation of how a program functions:
50BA Observing, studying and testing of computer programs

(1) It is not an infringement of copyright for a lawful user of a copy of a computer program to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.

(2) Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void).
It seems that you clearly think it is possible that someone else has actually modified your program in a way which is not permitted under sub-section 50B (3). However without proof that this is happening it is difficult for you to take any action, such as demanding that the infringement stops, or that you are paid some additional fee to cover the unauthorised modification of your program.

From your experience of the purpose of this software and the company's operations, can you tell whether it is more likely that your code would need to be modified or updated in order for the overall functionality to be retained, or would it be possible to update/improve the performance by adding modules or other software (produced by siomeone else) which just interfaces with your core program? If you think the latter is more likely, then this would, most likely, be covered by s. 50B. But if you are convinced that only the former would allow the customer's system to continue to work satisfactorily, then you, as the copyright owner, are entitled to write to the customer and ask to be allowed access in order to satisfy yourself on this score. It is implcit in the agreement, even though it was infomal and not written down, that you only provided a licence to the customer to use the software, and there was no transfer of the copyright itself, as this would have required a written and signed assignment, which clearly did not happen. If the customer refuses your request this may be evidence of bad faith and could possibly be grounds for seeking a court order to allow you access to the system to check for yourself that no infringement has occured. However this is likely to be a costly venture and you would most definitely need to get legal advice first, so not a step to be taken lightly.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

CodeMonkey
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Post by CodeMonkey » Wed Jul 26, 2017 9:09 pm

Wow - that's an really useful answer.

Based on my knowledge of the situation / software the 3rd party would simply be looking to decompile the code in order to add functionality to it based on requests from the customer.

The customer was particularly prone to wanting to change the way things worked which is why I'm of the opinion that the 3rd party has seen this as an opportunity to charge the customer themselves by making these changes.

I think I'll make further requests for access and perhaps float the idea that the reason that no access is being provided is that something untoward has occurred.

Thanks for you help.

CM

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