Comment by CheezeIt
5 years ago
I don’t see any reason why an ex-employee should expect a happy outcome when they create an open source “clone” of their employer’s product. Personally I have been in this situation as an ex-employee, where I was generally interested in the product field, and I avoided doing that to avoid any appearance of impropriety, and also to some degree, the copyright purity of the project would have been questionable and litigable.
A lot of people are very unclueful about this, especially young people, and maybe Mr. Masad could have had a gentler touch. But for the blogger to have cloned the product or part of it without (pinky swear!) actually taking any IP from the employer, that might in fact be legally true, but it’s a walk across a tightrope.
That you think “copyright purity” is the issue to litigate points out that you’re not very clueful either, I’m afraid. If I quit Google and write a clone search engine using none of their code but all of their technical architecture, in no way does that interact with Google’s copyrights. At all. You can’t copyright an indexing strategy nor a software architecture. You can, however, copyright a Visio diagram of the architecture. That’s a different thing.
This also applies to your nod toward “a novel fair use argument” in a sibling comment. Fair use has absolutely nothing to do with this or any hypothetical like it. You may as well have cited bird law.
Copyright isn’t the blanket IP concept people think would cover most disputes. These types of cases get into trade dress, patent law, and other legal concepts. The fundamental limits of copyright are why software techniques are patented in the first place and one reason among many why you sign assignment when you join a company.
IANAL and my comment is U.S. biased. At least in the U.S., the fixed and tangible aspects of copyright are bite-sized enough to understand without a J.D. Given how murky this entire field is when it comes to IP, it’s extremely important to understand these concepts for even a line engineer, as well.
Clean room design is a whole thing that people do, because of copyright. Maybe they don’t need to do that. If you want to quit the search team at Google and make your own search company, I’m not against that, but you should expect scrutiny like the kind Levandowski had.
Clean room design of software has absolutely nothing to do with copyright because software concepts cannot be copyrighted. I would encourage you to study these legal concepts further before you debate them, because you’re coming off quite uninformed. Copyright has a specific purpose and specific limits. Studying a competitive software product and cloning it (even non clean room) is, again, not a copyright violation unless you’re literally pulling code from the competitive product. Nearly all clean rooms are to avoid patents and specific implementation thereof in the software space. This is different when it comes to other fields, so I get the confusion.
Theft of intellectual property in the case you cited also barely touches copyright. Put another way, copyright status of the property in question is largely immaterial to securing a conviction on the allegation.
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Clean room design is about wholesale copying of code. If you copied the APIs and architecture and wrote the code differently there would be nothing wrong as SCOTUS just ruled.
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Regarding this part of your comment:
> Fair use has absolutely nothing to do with this or any hypothetical like it.
Yes, it does. The commercial effect of the usage is a factor in determining fair use, and that might distinguish a “show and tell” project from a “production-ready” OSS project.
Fair use only applies to copyrighted materials. The parent poster is pointing out (correctly but maybe not written the best way) that it isn’t a copyright issue unless something like code was actually copied, and thus fair use doesn’t apply. Abstract things like ideas, architecture and design don’t have copyright protection.
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