Unfair competition by feature plagiarism. The Courts of Milan issue two verdict that might pose severe problems to the software industry by Andrea Monti – originally published in Italian by Diritto di internet
The two judgments of the Tribunal and the Court of appeal of Milan rewrite the parameters for the assessment of software duplication in the context of deceptive conduct by favouring the external appearance (interface and functionality) over the traditional approach based on the comparison of the analysis (design) and the source code (implementation/expressive method).
The opportunity missed by the judgments, based as to the an on external similarities of the two pieces of software at issue, is to indicate how Article 2(I)(8) (which excludes from copyright protection
the ideas and principles underlying any element of a program, including those underlying its interfaces. The term program also includes the preparatory material for the design of the program itself
and Art. 45 of Legislative Decree 30/05 which, in paragraph II, excludes the legal protection of mathematical methods (i.e. algorithms).
The effects of these decisions on the software industry, historically based precisely on the replication of functionalities, and the structure of liability under industrial law are still to be assessed.