Tag Archives: lawsuit

CodeCLOC for software transfer pricing cases

Last month we announced CodeMeasure, our new standalone tool for measuring software growth. This month we announced the release of CodeSuite 4.0 that includes CodeCLOC for measuring how software evolves across versions of code. CodeCLOC uses the same algorithms that were implemented in CodeMeasure and that were developed for the landmark software transfer pricing case Symantec v. Commissioner of Internal Revenue.

You’re probably wondering what is the difference between CodeMeasure and CodeCLOC. CodeMeasure is a simple, inexpensive program for generating the CLOC measurement statistics for multiple versions of a program. CodeCLOC, intended for litigation, compares only two versions of code but produces a detailed database of results that can be further filtered and analyzed using CodeSuite or your own custom tools. The results from CodeCLOC can be presented in court and the CodeCLOC database can be presented to the opposing party for verification.

CodeSuite 4.0 also has a few other nice features including a revamped user interface. There’s also a new function to generate statistics from any CodeSuite database and the command line interface has been enhanced for integrating with other programs. CodeSuite 4.0 is available for download here and can be purchased on a term license or project basis. CodeCLOC is priced at $20 per megabyte. A one year term license for CodeSuite is $100,000.

Can whitespace patterns provide clues to plagiarism?

Over the years I’ve run into expert witnesses and attorneys who have told me about software copyright infringement cases where the only clues that copying occurred were patterns of spaces and tabs (“whitespace”). The idea is that if a truly ambitious thief wanted to cover his tracks, he would modify the stolen code so much that there was no longer a visible trace of copying. However, the clever software sleuth could find patterns of whitespace that the thief had missed; although virtually nothing remained, the invisible tabs and spaces could produce a conviction.

This always sounded intriguing, but I wondered whether anyone had ever tested this theory. We could find no articles or papers on the subject, except for one inconclusive paper, and I dreaded to think that some programmer was convicted based on an untested theory. I decided to have my consulting company, Zeidman Consulting, do some carefully controlled research. If the results turned out well, SAFE Corporation would add whitespace pattern algorithms to CodeSuite to further enhance its ability to detect copying.

Our results were published in a paper entitled Measuring Whitespace Patterns as an Indication of Plagiarism that was recently presented at the ADFSL Conference on Digital Forensics, Security and Law. Our results are summarized in the final paragraph:

This whitespace pattern matching method can be used to focus a search for evidence of similarity or copying, but this method cannot stand by itself.

What we discovered is that even very different files have often have similar whitespace patterns. At Zeidman Consulting we’ve used whitespace patterns to confirm copying that was already detected through the use of CodeMatch to find correlated programming elements. In those cases, the whitespace patterns offered further confidence in our findings and in some cases showed which program had been developed first. For a copy of the paper, email us at info@SAFE-corp.biz.

Our next research project is to look at sequences of whitespace within files. Maybe there we’ll find some clues to copying. But for now our results show that whitespace patterns without any other evidence should not be used to determine that copying occurred.

North Face v. South Butt

Jimmy Winkelmann, a freshman biomedical engineering student at the University of Missouri, decided to create his very own line of sportswear and called his company The South Butt (motto: Never Stop Relaxing). The North Face, a San Leandro, California-based outdoor products company, was not amused and smacked Winkelmann with a cease-and-desist order that Winkelmann read and promptly ignored. Then came the trademark infringement lawsuit. South Butt’s reply, filed in court, is pretty funny. Among other things it defines the company name as “being the soft undercarriage of the non-mountain climbing human anatomy, commonly known and referred to in non-salacious form as, among others, rump, bootie, bottom, buttocks, posterior, rear, saddle thumper and butt.” In a similar vein it describes “Little Jimmy” himself as “a handsome cross between Mad Magazine’s Alfred E. Newman of ‘What me Worry’ fame, and Skippy the Punk from the Midwest” If anyone knows who Skippy the Punk from the Midwest is, please let me know.

The North Face didn’t get the joke. Their lawyers scheduled a deposition of Winkelmann’s father, James Winkelmann Sr. That didn’t go too well. It turns out that Winkelmann Sr. was once a partner at the St. Louis brokerage firm of HFI Securities where partner Don Weir Jr. pleaded guilty a year ago to charges he stole more than $10 million from clients (Winkelmann was never implicated in any wrongdoing).

I suggest you download the reply and the deposition when you want to have a good laugh at the expense of the legal system. The reply is pretty sarcastic and it’s not clear to me who it’s supposed to appeal to (except readers like us, but not necessarily the judge). The deposition reads like a Marx Brothers skit and is every bit as funny. Litigation has never been so much fun.

Who really invented the computer?

The digital computer is usually credited as the invention of two professors at the University of Pennsylvania, J. Presper Eckert and John Mauchly. Funded by the United States Army, the ENIAC computer was designed to calculate tables for launching artillery shells accurately in World War II, but was not completed until after the war in 1946. Unlike earlier computers that had a fixed purpose, ENIAC (meaning “Electronic Numerical Integrator And Computer”) could be reprogrammed to handle many different purposes. But were Eckert and Mauchly really the pioneers of today’s modern digital age?

Actually no. The real inventors of the digital computer were physics professor John Atanasoff and his student Clifford Berry who created the first digital computer in a laboratory at Iowa State College. The ABC (“Atanasoff-Berry Computer“) was built in 1939, yet by the time of ENIAC’s introduction to the world, the ABC had been forgotten. What had happened? World War II broke out and  Iowa State as well as Atanasoff and Berry simply didn’t realize the power of what they had created. Atanasoff was called up by the Navy to do physics research, eventually participating in the atomic bomb tests at Bikini Atoll.

When Atanasoff returned to Iowa State he found that his invention was gone to make room for other equipment—because the ABC was built piece-by-piece in the laboratory, it was too big to move out and so it had to be dismantled. Iowa State had decided that a patent was too expensive and so never filed one. John Atanasoff went on to gain recognition for a number of inventions involving physics, but the ABC was mostly forgotten.

In the 1970s there were a handful of companies that saw the great potential in the electronic computer. Sperry Rand Corporation, which was formed through a series of mergers and acquisitions including the Eckert–Mauchly Computer Corporation, held U.S. Patent 3,120,606 for the digital computer. In 1973, Sperry Rand sued Honeywell, Inc. and Honeywell reciprocated. Thus began one of the most important intellectual property cases in history.

During the research for this case, Honeywell found out about John Atanasoff and the ABC, which became pivotal information. The case was tried for 7 months after which Judge Earl R. Larson handed down his decision that stated, among other things, that the Eckert-Mauchly patent was invalid.

Some people have disputed this finding, arguing that this was a “legal” finding or a “loophole” or that a lawyer or a judge simply couldn’t understand the complex engineering issues involved. Here’s my take on this.

  1. Both sides had a lot of time, and access to technical experts, to make the best case they could.
  2. So much was at stake, and a huge amount of money was spent to bring out the truth. Both sides had very significant resources. If a case with this much at stake could not convince a judge after seven months, then there is little hope for any IP case.
  3. Evidence was found and witnesses verified that John Atanasoff had attended a conference in Philadelphia where he met John Mauchly and described his work. He then invited Mauchly out to Iowa where Mauchly spent several days examining Atanasoff’s computer and many late nights reading Atanasoff’s technical specifications. Letters were produced, signed by Mauchly, that thanked Atanasoff for his hospitality and for the tour of his amazing invention.
  4. Mauchly testified at the trial. He admitted that he had met Atanasoff and eventually admitted that he had examined the ABC and read its specification.
  5. Mauchly and Sperry Rand Corporation were challenged to produce a single piece of evidence that Mauchly or Eckert had written about or researched digital electronics before Mauchly’s meeting with Atanasoff. The best Mauchly could do was produce a circuit for a model railway flasher that he claimed was a binary counter—it counted from 0 to 1 and then back to 0.

In fact, it became clear that Mauchly and Eckert attempted to claim much more credit than they deserved and tried to deny credit to others. They had actually greatly improved on Atanasoff’s original design. Had Eckert and Mauchly been more humble, had they added Atanasoff’s name to their patent, had they patented their own improvements instead of the entire invention, they may have given Sperry Rand the most powerful IP in technology history. Instead the invention of the computer entered the public domain without restriction, and the rest is history…

For a good book on the subject, read The First Electronic Computer: The Atanasoff Story by Alice R. Burks and Arthur W. Burks.

Interesting software IP cases of 2009

Here is my list of the most interesting software IP cases of 2009,
in chronological order:

What to look for in an expert?

I recently came across a study in the Journal of the American Academy of Psychiatry and Law out of the The University of Alabama entitled “Credibility in the Courtroom: How Likeable Should an Expert Witness Be?” To be honest, I’m not sure I understand their conclusion:

The likeability of the expert witnesses was found to be significantly related to the jurors’ perception of their trustworthiness, but not to their displays of confidence or knowledge or to the mock jurors’ sentencing decisions.

Reading the paper doesn’t make it a whole lot clearer for me, and I think their mock trial setup is a bit contrived, particularly since the jury consisted of psychology students, a demographic that you’d be unlikely to find on a real jury. Also there were only two expert witnesses for the comparison. To their credit, they discuss these potential shortcomings. I do think, however, that the paper points out something (that may have already been obvious)—there is more to being an expert witness than just being correct. Personality and presentation are strong factors.

On the other hand, I feel that this subjective aspect should be minimized. Experts need standards and measurable quantities whenever possible. Before I began developing the concept of source code correlation, the way software copyright infringement and trade secret theft cases were resolved was to have two experts give contrary opinions based on their years of experience. The judge or jury would tend to get lost in the technical details, a strategy purposely employed by some experts and attorneys, and a judgment would depend on which expert appeared more credible.

Instead, I decided to expand the field of software forensics and made it my goal to bring as much credibility to the field as DNA analysis, another very complex process that is well accepted in modern courts. I still believe that an expert’s credibility and likeability will always be factors in IP litigation, but that the emergence of source code correlation and object code correlation provide standard measures that bring a great deal of objectivity to a lawsuit’s outcome.