Software infringement

Software infringement is the violation of the rights of the author of a program through its reproduction, translation, adaptation, placing on the market or use without authorisation. It is governed by Articles L. 122-6 and L. 335-2 et seq. of the Intellectual Property Code, which can be consulted on Légifrance. Software infringement covers very different situations: pirated copies, code taken by a former employee or provider, rewriting of a competing program, or exceeding the limits of a software licence.

The acts constituting software infringement

First, reproduction of the code, in whole or in part, including in a form translated into another language. Next, adaptation or modification without authorisation, beyond the statutory exceptions granted to the lawful user. Then use beyond the licence: number of users, sites, duration, purpose. Finally, placing copies on the market. By contrast, taking only the functionalities, ideas or algorithms, without taking the form of expression, is not infringement, but may fall under Parasitism or the violation of trade secrets.

Proving software infringement

Proof rests on comparing the source codes or, failing that, the object codes and the behaviour of the programs. The saisie-contrefaçon, provided for software by Article L. 332-4 of the Code, allows the code to be copied at the alleged infringer’s premises by a bailiff assisted by an expert, with the copy placed under seal to protect the secrets of both parties. A court-appointed expert then compares the programs. The rightholder must prove the originality of its software and its ownership, which requires keeping successive versions, assignment agreements and proof of dates.

Sanctions

On the civil side, the judicial court may order an injunction under penalty, the withdrawal of copies, publication of the decision and damages taking into account lost profits, moral prejudice and the infringer’s profits. On the criminal side, software infringement is an offence punishable by imprisonment and a fine. In practice, the firm acts for claimants and defendants, in particular in disputes between publishers, between a publisher and a former provider or employee, and in licence audits, as presented on the page contracts and on the entry software protection.