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A software copyright infringement expert witness is a technical professional who analyzes source code, applies recognized legal methodologies like the AFC test, and provides defensible testimony to help courts evaluate infringement claims. Software copyright infringement cases can be among the most technically demanding disputes attorneys may encounter. The question central to these types of disputes is whether one party’s source code improperly copies or derives copyright-protectable expression from another’s. Answering this question requires knowledge and expertise to inspect software, and use of technically advanced analytic and forensic investigative methods, not only to identify the right evidence, but to place it in the appropriate context, and to present highly defensible facts in a cogent way to non-technical audiences.
In many cases, copyright infringement assessment is not as straightforward as placing two code sets side by side and observing whether there are similarities or not. Importantly, some similarities are not considered material. For example, because software source code is always written in a given programming language, and programming languages are standardized, it follows that certain language constructs and architectural paradigms will be common among two or more programs written in the same language.
To fully investigate and understand the facts requires expert-level knowledge of programming languages, architectural design concepts, common industry practices and methods, the application for the software at hand, and a robust knowledge of software development methods and software design artifacts. Forensic investigative expertise is also helpful here.
Importantly, an expert witness in these types of cases often serves a broader role than just a supporting figure to the overall legal theory and outcome of the case. The expert’s analysis is frequently central to the case, as judges and juries can struggle to identify and evaluate the technical evidence without expert involvement.
Indeed, judges sometimes enlist the help of an expert witness as a special master operating under the judge’s oversight to more fully understand the evidence presented by the parties and assist with the case disposition.
In this article, we highlight the kinds of analyses a copyright infringement expert witness often undertakes, and how that expert deploys their knowledge and experience to help shape the outcome of a dispute.
1. What Makes Software Copyright Cases Technically Unique
Software copyright cases are technically challenging because the analysis required to develop material facts involves a breadth of knowledge and experience, and the analysis is highly specialized.
For example, for decades, courts have long-accepted a technically complex analytical methodology known as the “Abstraction-Filtration-Comparison” or “AFC” test. This analysis goes far beyond simply comparing text or images directly; it requires understanding the source code composition typically through a source code audit, evaluating source code through source code examination of the software architecture, software design, and other constituent components of the computer program and asking whether, for any given component or function, the program exhibits the required degree of creativity and originality.
To even begin the analysis requires an expert who understands how software is built in addition to a foundational understanding of how copyright law works, and what it seeks to protect.
Moreover, the volume of information to evaluate in these cases is substantial and complex. In some cases, the analysis may be limited to well-defined and compact sets of source code, but even then each set may have its own version history, development records, design documents, commit logs, and may even touch upon one or more source code repositories that have material artifacts that tell the story of the program’s creative timeline. In any given case, these various artifacts and the systems of record in which they are preserved may be a key element to probe to help develop the facts.
2. What a Software Copyright Infringement Expert Witness Does
A software copyright infringement witness’ expertise combines not just their technical skillset, knowledge, and experience, but also their exposure to the application of copyright law principles to real world issues. That’s not to say a software copyright infringement expert must have a law degree, but it is key that such an expert has been confronted with the foundational concepts of creativity, originality, joint authorship, and derivative works in the normal course of their experience.
This experience informs and directs the expert’s core analytical work across the litigation lifecycle, providing the ability to perform a variety of investigative tasks and ask the appropriate questions in each step. Below is a brief overview of some of the tasks our experts have routinely performed in such cases:
i. Source Code Audits
This type of analysis involves investigating the source code at the most basic level to reach a foundational understanding of the source code’s composition, including key aspects such as the programming language used, the volume of source code files present, the progeny of certain source code files (e.g., third-party source code, open-source code, etc.), identification of the appropriate versions and how they are used.
ii. Literal & Non-Literal Similarity Analysis
This type of analysis requires comparing the accused software against the allegedly infringed (e.g., “original”) work at both the source code level and at various architectural and design levels to identify whether, and to what extent, copying may have occurred. Often, this occurs through source code examination.
iii. Filtration of Unprotectable Code Elements
This type of analysis requires identifying, and setting aside from the comparative inquiry, certain elements of software that copyright does not protect, such as ideas, material in the public domain, or elements required by efficiency or other external factors like industry standards.
This analytical inquiry is critical, and failure to perform it properly in the context of a software copyright infringement matter tends to be a common basis on which experts face Daubert challenges because it deviates from accepted methodologies.
iv. Development History and Access Analysis
This type of computer forensic analysis entails examining development artifacts provided by a source code repository or version control system, evaluating commit and comment histories and internal communications to determine whether the accused party had access to a protected work, and when. Often, this necessitates computer forensic analysis skills to conduct a thorough investigation.
v. Expert Report & Testimony
Preparing a defensible and thorough written report that illustrates defensible facts is vital. The core requirements of a software copyright infringement expert are to assist counsel in developing highly defensible well-documented material facts, and the ability to testify clearly at deposition and trial based upon these facts.
A skilled expert in this particular subject matter is able to clearly explain the analysis, factual findings, conclusions, and their opinions in terms that a non-technical judge or jury can follow.
3. Qualifications of a Software Copyright Expert Witness and Key Considerations for Attorneys
As discussed above, software copyright infringement experts, and the analyses they perform, can become the focal point of the dispute, as the experts are key to helping attorneys develop material facts and strengthen their strategy and positioning.
As such, an experienced copyright infringement expert can add significant value to the matter. In our experience, we’ve found that the most successful litigants consider numerous factors when evaluating expert witnesses for help with their case. Below are some of the most common factors our clients have considered when evaluating us for a given matter.
i. Software Development Background
Litigants look for software copyright infringement experts who have demonstrable software development experience. An expert who understands copyright but has never written or analyzed code in a professional context may have to withstand significant challenges to their expertise and credibility. Such experience can come in the form of formal software development project contributions, development of source code for ongoing open-source projects, or project management activities and software maintenance.
An experienced expert will be able to exhibit direct software engineering or development experience and understand the process by which software is designed and built, not just how the process is described in legal filings or documentation. A potential expert who cannot clearly demonstrate experience may not be able to speak with the same credibility as a seasoned practitioner. Therefore, it is advisable to ask potential experts about their background in software development, and the types of software they have helped build or analyze.
ii. Source Code Analysis Expertise
Next, litigants also look for software copyright infringement experts who can perform analyses, and carefully and thoughtfully interpret the results. This implies that the expert can conduct rigorous source code audit and source code examination analyses and not merely run automated similarity tools regurgitating their results.
A highly qualified expert will be able to interpret the results and give meaning to the facts in the context of protectable expression versus functional necessity or ideas. Tools-generated similarity scores, without qualified expert interpretation, are routinely scrutinized at deposition and trial and present a risk of being discredited and set aside.
Inherent in this qualification is the knowledge and ability to adhere to rigorous methodologies and distinguish material facts from others. It requires the ability to do more than simply run a tool that quantifies and reports the results, but to then scrutinize those results to assess their significance in the larger context.
In other words, the right expert will be able to apply their knowledge, experience, and expertise to the analysis to draw attention to the material facts that impact the case disposition in a way that is not apparent simply from the quantified results.
An expert will be able to demonstrate this analytical expertise and rigor throughout the various stages of their engagement. For example, an expert who can showcase their familiarity with the AFC test and speak to their own personal experience in applying that methodology, particularly with respect to identifying and filtering out unprotectable elements, exhibits significant qualifications to perform the key components of the analysis. Further, an expert who has performed this analysis numerous times previously undoubtedly has come across situations where the evidence is technically ambiguous, and the similarity findings are not clear-cut.
An expert who can thoroughly and accurately document the process, findings, and how they reached the conclusions in their prior reports demonstrates their ability to wrestle with the technically challenging subject matter. As such, it is advisable to ask a potential expert about their experiences in applying the AFC test, their practices regarding documentation of the methodology and findings, their approach to interpreting the quantified results, and how they address ambiguities they are likely to confront in each case.
iii. Courtroom and Deposition Experience
Technical excellence in research or development roles, though helpful, does not automatically translate to credibility on the stand in deposition or trial. Likewise, testifying experience alone does not compensate for the technical expertise needed for these types of complex analyses. It is advisable to seek an expert who demonstrates experience and expertise in both aspects, because that expert will be able to explain complex findings clearly to a non-technical audience and do so in the right context, which avoids certain risks and creates value in the case.
The best experts let the evidence tell the story wherever it leads, rather than advocating for any predetermined conclusion, and this often is reflected in an expert’s prior testifying experience on behalf of plaintiffs and defendants in software copyright litigation. That kind of objectivity lends itself to credible testimony durable enough to withstand Daubert challenges. An ideal expert will be able to demonstrate prior experience supporting both copyright owners in pursuing infringers, and those defending their work. An expert with a very one-sided track record typically invites impeachment attempts.
DisputeSoft has significant experience on both sides of these types of software copyright disputes.
Our experts have been retained to help copyright owners establish the scope of protectable expression in software and effectively quantify and contextualize the similarities between the original work and an infringer’s. Our experts have also been retained to scrutinize a plaintiff’s expert’s work by evaluating their application of the AFC methodology and respond to the expert’s results and findings. Further, where evidence supports it, our experts have been able to demonstrate independent development in direct challenge to a plaintiff’s expert’s applied methodology.
Thus, it is important to consider potential experts with robust experience on both sides of the dispute who have demonstrable report writing and testifying experience in specifically these types of matters. This experience further evidences their ability to explain clearly the methodologies, findings, and conclusions in a way that can influence the case outcome.
iv. Familiarity with Relevant Platforms and Industries
Software copyright disputes arise in many different contexts, including enterprise applications, embedded systems, web platforms, mobile applications, and even APIs. An expert with broad experience, either as a developer helping build these systems, or as an expert helping analyze these systems in a dispute context, will provide significant value at all stages of the litigation.
An expert can demonstrate such experience by describing the various code comparisons they’ve undertaken concerning the same category of software or industry at issue in the present matter or detailing their development experience in the same. However, this is not a clear-cut rule. An expert with substantial experience in either development or expert analysis but lacking direct experience with the type of software at issue, may still be able to perform the analyses and present their findings and opinions in a clear and cohesive manner.
As such, it’s important to consider the potential expert’s experience not just with expert analysis, but their experience with the type of software, and whether they are in a position to enlist the help of support staff members to help close any gaps in their processes.
Conclusion
Software copyright infringement cases can turn on technical findings that only a qualified and experienced expert can develop and communicate effectively.
The right software copyright infringement expert brings direct software development experience, methodological rigor in applying the various technical analyses courts rely on, and the communication skills to make complex technical findings more accessible to a judge and/or jury.
Engaging such an expert early in the process can help shape discovery strategies which help to strengthen the expert’s later report, develop cohesive and material facts, and reduce exposure to Daubert challenges.
Attorneys handling software copyright infringement disputes are encouraged to contact DisputeSoft for a confidential case evaluation. With over 23 years of experience analyzing complex software and IT systems, and voluminous direct exposure to software copyright disputes, DisputeSoft’s experts have the technical depth and testifying experience to support counsel from pre-litigation consulting through verdict.
Frequently Asked Question of a Copyright Infringement Expert Witness
What kind of qualifications are important to consider when evaluating experts for potential fit for a case?
Important considerations include a potential expert’s direct, hands-on experience in developing or analyzing software, their familiarity with analytical techniques in evaluating software for copyright infringement, their report-writing and testifying experience, and their familiarity with given industries or categories of software.
What are the different ways in which a software copyright infringement expert can assist in a dispute?
Software copyright infringement experts can help by performing source code audits to understand the software composition, source code analysis to identify similarities between competing code sets, analysis of source code development artifacts through evaluation of documentation, source code repositories, and other supporting information, and provide testimony to help attorneys develop facts material to the outcome of the case.
What makes software copyright infringement matters complex?
Both the volume of information to be considered in the analysis, and the central role the analysis takes in the disposition of the case. Comparing sets of software from different perspectives (e.g., “abstraction”) to identify protectable expressions and applying various filters to facilitate an appropriate comparison is a time-and-effort-intensive process. Moreover, the results often present material facts that speak directly to the merits of the case and influence its outcome. This differs from other forms of software dispute wherein the critical facts uncovered through expert analysis are persuasive, but not dispositive.
Many publicly available tools can compare software and produce results—why does an expert witness need to be involved?
While there are many publicly available comparison tools available for use, and in many cases, are leveraged for use in analysis, a tool is only as useful as the expert leveraging it. Expert witnesses with the appropriate experience, education, and knowledge understand these tools can provide cost-and-effort-saving benefits. An experienced expert knows how to properly configure the tools to extract meaningful output that can then be interpreted and simplified for the appropriate audience.
