The anonymous online survey of more than 3,000 developers found that almost 70 percent of respondents keep a personal library of code that they freely carry between employers. Such code is generally used without the lawful owner's knowledge or permission, according to IT legal experts out-law.com.
"Reusing or copying code, though in some ways unlawful, I believe is common practice in software development," said one freelance developer who participated. "Most developers that I come in contact with (including myself) reuse, copy, or even reverse-engineer code to make it work better or to include it in an application that we are programming."
According to Susan McKiernan, an IT lawyer with Masons, the law firm behind out-law.com, the survey showed that there was a widespread acceptance of the practice of reusing and 'borrowing' code.
McKiernan said that the fundamental issue involved was whether a substantial part of the code had been copied.
"The problem lies in figuring out what is a substantial part of a software program," said McKiernan.
According to McKiernan, the courts say that you cannot define substantiality in terms of percentages of code.
"You need to consider the skill and labour in design and coding which went into the specific bits of allegedly copied code," she said.
McKiernan points to one case in which a party copied only 2 or 3 percent of the total code, yet was found to have infringed copyright. In another successful infringement action, the developer had made considerable modifications and additions to the original software -- making it visually very different and more user-friendly -- but had nonetheless used the original software to take shortcuts.
The survey also revealed that developers do not realise that software does not need to be identical for copyright infringement to arise. Almost 90 percent said they would reproduce the way another piece of software functions, without copying any code.
"By consulting the original code and program, however, a developer could still be found to have copied a substantial part," said McKiernan.
Software companies also face a threat because the development workforce tends to change jobs frequently, which increases the chances of employees and contractors introducing materials from previous employers, clients or elsewhere.
"The Internet adds a further risk, with the availability of software from anywhere in the world and the potential for code-sharing through forums and bulletin boards," said McKiernan.
And so does the pride that developers take in their software. Writing code is hard, and developers like to show off their work.
"I haven't met a developer who wants to hide his/her code," said one developer. "Developers are proud of their code and want other developers to see its brilliance (and feel proud if others use it). It's companies and managers who care about copyrighting code."
The full report will be available shortly to those who subscribe to the free Out-law Magazine, available here.
Talkback
It is problematic that source code is not always the final form of a software.
I took part in this survey and found it to be deceptive in the way questions were asked.
The questions were multiple choice, and often all of the choices could be interpretted to mean that I supported code theft.
As I recall, many of the questions were asked without specifying the software licencing terms involved.
In ignoring the possibilty the open source and other software can often be legally incorporated into many development projects, my answers to the questions made it sound like I supported blatant code theft. I made a comment to the flawed nature of the survey to the out-law.com folks, but never recieved a response.
There is no way that this survey was intended to be fair and balanced evaluation of illegal code reuse in the software industry.
ZDNet and Michael Parsons need to do a little more due diligence on this one.
dont use this code, it's stolen!!!
if( flag==true )
Programs are written in languages: There is a finite number of ways of saying or doing the same thing. Column writers use sentences that we se in other articles and no one complains. If you copy the look feel etc of a program then you may infringe but if you need to perform a task and you have working code that does it, use it. As the programs are actually compiled before running the copyright surely will then lay with the compiler writers as it is their code that is being reproduced.
I am glad Joe used Lower case there. If he had used TRUE in capitals he would have infringed upon a program i wrote in '69 back when we only had capital letters.
Bob Jones is spot on with his statment that the survey is flawed.
I too took part in the survey and posted a comment pointing out what I thought were flaws in the methodology, but as in Mr. Jone's case, received no response.
The survey made no distinction regarding the licencing of code, or the terms underwhich code had previously been written, and again made me llook like a blatant code thief.
The entire questions were written with the mindset that code belongs to an organisation, and any use of it outside of the organisation is theft. Whereas, of course, the situation is a lot more complicated than that. A true test of developer's comprehension of the true situation: now that would be an interesting survey.
My experience is the opposite.
Once as part of a small conxultancy doing contracting to pay the rent, we openly offered some code we'd developed in-house to speed up one of our contracting projects.
The customer accepted the offer, but when push came to shove refused to pay up as per our informal agreement.
We decided not to delete all the stolen code, but were tempted. However we didn't have much spare cash, and couldn't afford an open-ended legal battle.
Ever since then I've avoided any possible code re-use across projects not sharing a customer.
It's just not worth the hassle, and you make more money by reinventing the wheel.
its worse than that I could have patented the construct if (flag==true) back in 1955 in which case you'd all owe me money!!