A Guided Tour of the Legal Implications of Software Cloning

Software Cloning is the typical example where an interdisciplinary approach may bring additional elements into the community's discussion. In fact, little research has been done in its analysis from an Intellectual Propriety Rights (IPRs) perspective, even if it is a widely studied aspect of software engineering. An interdisciplinary approach is crucial to better understand the legal implications of software in the IPR context. Interestingly, the academic community of software and systems deals much more with such IPR issues than courts themselves. In this paper, we analyze some recent legal decisions in using software clones from a software engineering perspective. In particular, we survey the behavior of some major courts about cloning issues. As a major outcome of our research, it seems that legal fora do not have major concerns regarding copyright infringements in software cloning. The major contribution of this work is a case by case analysis of more than one hundred judgments by the US courts and the European Court of Justice. We compare the US and European courts case laws and discuss the impact of a recent European ruling. The US and EU contexts are quite different, since in the US software is patentable while in the EU it is not. Hence, European courts look more permissive regarding cloning, since “principles,” or “ideas,” are not copyrightable by themselves.