If indeed over 75 percent of software developers reuse computer code written or developed elsewhere, it doesn't always equal breaking the law, according to a recent study by Out-Law.com, an online magazine specializing in cyberspace legal issues.
"Many developers don't know and cannot be expected to know where the legal boundaries lie," according to information technology attorney Susan McKiernan of Masons, an international law firm which publishes Out-Law.com. But she also said software developers "are more clued up" regarding intellectual property and the law than credited.
The e-zine surveyed 3,970 coders who "generally" acknowledged that reusing and borrowing code is all but common practice, but McKiernan warned that most software – including open source – is reusable only if conditions of various license agreements are obeyed.
"Some code can be reused without following license conditions if the section taken is not a substantial part of someone else's work," she said. "But the problem lies in figuring out what is a substantial part of a software program – and it's not fair to expect developers to make that call. Copying a small part of the code, even just 2 percent in one case, could amount to a substantial part because courts will look at the quality of what is taken, not just quantity."
According to the Out-Law.com survey, almost 90 percent of the developers surveyed said they would reproduce how other softwares function without copying any code, but that referring to the original coding could mean a developer found to have copied "a substantial part" just by following some of the structure and design aspects.
"Libraries of code developed and shared in-house are unlikely to present any problems," said McKiernan, who urged developers to always get formal permission, especially when in doubt. "Problems may arise, however, when the code is introduced from elsewhere by an individual who has not gone through a proper approval process."
Almost 80 percent of the developers surveyed said they kept a personal code library, with almost 85 percent of those taking it with them if switching from one to another employer, according to the survey. McKiernan said that equals about 67 percent of the total development community taking their personal code banks from job to job.
She urged companies to maintain what she called audit trails for software development projects, which "may require some training for developers to avoid bad practices." But it might keep a developer from being made to judge what is or isn't substantial, she added. Especially in light of cases such as where even copying a mere two or three percent of the total code could equal an infringement judgment.
"We're not saying that a developer cannot use code from third party software," she continued. "Often its just a case of getting someone in the company to check the licensing position, even if it is open source software. But employers need to understand that it is their company, not their individual developers, that are likely to be the target of any action for infringement."
