Category: Software and Open Source

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Software-Based Claims Attack Strategies

Under Italian laws, hiring a software-house to produce an industrial application may expose a non-IT savvy company to civil and criminal action filed by the software-house itself and/or by the other software-house that has been called to replace the one the initially did the job. This is the consequence of a lazy attitude towards a properly written agreement and a deep ignorance of the intricacies of the software development’s world.

Here is a fairly usual scenario: a tiles manufacturer needs a software to control the temperature of the ovens used to finally release the products. It asks a software house to write the application, securing in the agreement that “all the intellectual/industrial property belongs to the company”. By doing this the company feels on the safe side and believes to be shielded by no matter what problem.

But.

The agreement didn’t clarify the exact way the IP must be transferred, so the software-house delivers the software on a LICENSING basis and not as a full-ownership transfer. Once the agreement has been signed, the company doesn’t read the following papers at all and thus, de facto, the agreement has been amended (possibly) unbeknownst to the company’s legal department.

Let’s say, now, that the business relationship with the software house breaks and the company finds another partner, giving him access to the source code made by the previous developer. The company sees no problem in doing so since believes to “own” the software so the new developer just start working on the code.

But.

The company failed to identify the code given by the original developer (for instance, by adding disclaimers or comments both in the source and the executable version) thus infringing the moral IP rights that, under Italian Copyright Act belong to the author and cannot be sold or otherwise transferred.

So the software’s author steps in claiming that the company has violated his rights because allowed a third party to access and use a LICENSED code. And when the company tries to blame the new developer he counter the move by accusing the company of infringement of the Criminal Corporate Liability Act (Legislative Decree 231/2001) because of the lack of prior identification of the supplied source code as being authored by a third party.

Lesson learned: under Italian Laws a proper software development agreement should at least contains:

– a precise identification of the source code that has been released, with a duty, on the software-house side, to mark and duly comment the software,

– a clear statement about the IP ownership transfer to the company,

– a clear exclusion of any further change or amendment including the impossibility of turning the agreement from a full-transfer into a license,

– a clear provision that, whatever the legal status of the software, the company is entitled to be given the source-code,

– a clear clause that grants the company, whatever the legal status of the software, the right to allow third parties to access and modify the source code.

Furthermore, since such kind of agreements – once signed – rarely come back on the legal department desks, it is fundamental to train the technical and financial department involved in the further steps, to carefully scrutinize papers and communications so to avoid any “mudding” of the original stipulation.

A final note: when a third party is hired to work on the software, it should be made it clear that the software, while owned by the company, still bears the original author’s moral right, with all the legal consequences.

 

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Aperture’s EOL And The Consequence Of Livining in a Golden Cage

Apple discretely manage software lifecycles to push users into buying new, its new, expensive hardware.

A recent news is that is going to dump Aperture, its photo management pro app, announcing in the meantime the availability of a “photo” application in the next iteration of OSX. True, Apple shall not drop the support for the new OS versions, but for how long? This uncertainty ? will force people to either stay stuck to older machines or move to Adobe Lightroom, the (currently only) competitor. In either case this will cause financial and time issues for Aperture’s user-base.

Aperture is nothing but the last Apple-made software to meet this ? or a similar fate. Final Cut Pro X latest version, so Pages, Numbers and Keynote, just to name a few, only work with the current OSX version, Maverick.

True, compared to the consequences of Microsoft XP dismissal, the Apple choice looks a trivial issue but on the long term it shouldn’t, since managing the lifecycle of its applications as well as the backward compatibility, Apple is able to force its users into buying new expensive hardware. Furthermore, for those who choose not to upgrade, the software old-versions might not be anymore permanently available through the AppStore and cannot be locally downloaded. So why a professional user should enter into this uncertain – or, on the contrary, safe-but-costly, world?

This is the consequence of living in a Golden Cage: stay comfortable as soon as you can afford it. And when (“when”, not “if”) you don’t anymore, just get lost and give room to the next, wealthy-at-the-moment, occupier of your place in the Golden Cage.

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Stop Apple and Google To Take Over Our Cars

Google just announced its “Android Auto” platform, while Apple already did ? it with Carplay. Both platforms require an Internet connection and, it is just matter of time, will become more and more deeply interconnected with the car control system.

But software do fail. It fails because there’s no such thing as a bug-free software, it fails because people do mistakes, it fails because the software house’s roadmap not necessarily matches the final users’ safety.

And I don’t care about the usual PR stunts such as “as soon as we discovered the bug we did our best to fix it the fastest way” or “since the xyz library is licensed and proprietary we can’t keep responsibility for the way the software behave” or, finally, “if you just read the EULA you will find that it is clearly stated that we don’t take any responsibility for blah, blah, blah…”

This is a price we cannot afford to pay.

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The XP’s EOL. History Will Teach Us Nothing

Windows XP is dead in Redmond, but alive and kicking in a huge quantity of devices such ? ATMs. When the news hit the media, waves of “concerns” for the security of our money and safety stormed the public, with no actual effect on the Microsoft’s strategies. And history keeps repeating with domotics, wearable technologies and in-car systems.

This aftermath was easy to foresee when some “clever” IT manager chose to go proprietary when moving its ATM infrastructure “to the next step”, but between this and the open source alternative a third option would have spare us all the current trouble: just put into the agreement a source-code escrow provision, to guarantee the (big) client against the End-of-Life of the software.

Sure, this wouldn’t have been a cheap solutions (we’re not talking about a bunch of PHP code, here) but there are no free beers and easy life can’t last forever. If you go proprietary and enjoy the safety(?) of having somebody else who cares about bugs, patches and updates, you need to have a contingency plan for the moment when your licensor plugs-off the cord that keeps alive the software you’re using.

And now history is re-repeating itself. We’re on the edge of a new invasion of pervasive technology based on Apple’s OSX or – again – Microsoft Windows Whatever, and in a bunch of years we will complain again that because of a copyright issue we can’t enter our home, use the fridge, watch the television, start the car, know what’s the time, have a medical diagnosis and so on…

A final, collateral, question: where do the corporate lawyers were, when those agreement have been signed?

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The Legal Status of Bitcoin in Italy

While it’s easy to think of Bitcoin as a “currency” things become complicated when approaching the issue from a legal (though, Italian) perspective.? Under Italian law, Bitcoin neither is a “currency”, nor the equivalent of check or a credit card. Is “just” a good that people freely chose to put some value into, like an old camera or a classic car whose intrinsic value is close to nil, while the trading value skyrockets.

To better explain my point, let’s start with some economics.

Currency, in itself, has no intrinsic value. We do accept a piece of paper because we trust that somebody else, on the receiving side, will do the same, otherwise we don’t. This is what happened during the Cold War, when in the Eastern Block countries western currencies – officially not allowed – were traded on the black market, while in the West nobody would ever accepted Roubles. For the records, the root of this “psychological” way to create value dates back to the breaking of the Bretton-Woods Agreements.? So, as odd as it may seems, we may safely assume that money is just a creation of the mind. The “currency power” is a prerogative of a sovereign State. In other words, to be acknowledged as “currency” a currency must come from the Power-that-be. Thus, whatever doesn’t fit this requirement can’t be called “currency” or “money” (this is true within the EU, but not in some parts of the USA where the “private currency” is currently allowed.) It comes from this definition that Bitcoin is not a “currency”.

Is, then, Bitcoin something like a check or a promissory note? No, because under Italian law these things are regulated by specific laws.

Furthermore, is Bitcoin similar to a credit-card? Again, no, because there is no third-party who guarantee for use of the plastic-money.

One possible solution, at least under the Italian legal system, is to treat a Bitcoin as an immaterial good that can be traded as a quid-pro-quo either with other Bitcoins or different things. Simple as that.

Of course, I’m aware of the issues raised by the use of Bitcoins that – if you think for a while – aren’t different by those related to the use of cash or other valuable assets. Gold, diamonds and other precious things can be used for legitimate purposes or to fund illegal activities. But this doesn’t make a brick of gold illegal “ex se”. The same approach should work for Bitcoins (whathever its legal status.) It is the misuse that should be punished and not the Bitcoin in itself. Unfortunately, as always happens when technology is involved, the “Fear Spreading Professionals” are playing loud their “warning” instead of trying to understand how to gain advantage from a brilliant mathematical application.