Clean Rooms Can Protect

By Stuart Markus
Long Island Business News
August 3, 2001

Software developers working to create products that compete with existing programs should understand that the cloud of a potential copyright infringement suit hangs over their heads, attorneys say.

To defend against the threat, some larger software companies have resorted to a technique called a "clean room," and the attorneys say smaller software groups might be wise to employ it as well.

There are two vital elements to a copyright infringement claim, said Alan Mittman, of counsel to Meltzer, Lippe, Goldstein & Schlissel: the offending material must be "substantially similar" to the existing written material. And it must be proven that the accused writer had access to it.

The point of a clean room is to document that one's software engineers did not have access to pre-existing, copyrighted material. As Woodbury attorney Marc Jacobson put it, "If you and I both write the same poem independently of each other, both could have copyright protection."

It's easier said than done. From the very beginning, Mittman said, there should be three separate teams: one to set up the specifications of the new software, one to develop it and a third team to act as a go-between.

The first team, which would look at existing programs as a guide for the one to be developed, must have no contact - not even social or casual - with the second, which is the "clean" team. If possible, they should be in separate locations, even separate cities - but at the very least, separate rooms.

The third team, the evaluation team, might include a lawyer and other outside experts to test the new software, make sure it doesn't contain any copyrighted material and funnel communications between the first two teams, filtering as necessary.

Members of the clean team should also be screened, to make sure they haven't worked for the company whose software is being challenged - or, if they have worked there, they haven't had access to any trade secrets that could be evidence in a lawsuit and didn't work on the software they seek to replicate.

All research should be carefully documented, Mittman said, including daily drafts, lab notebooks, minutes of meetings, records of failed attempts, even documentation with videotape.

A special caution should be taken by the first team not to specify functions in the original that are irrelevant. They may have been placed there as a red flag to copyright infringement, like a mapmaker purposely putting errors in his maps to prove if they've been plagiarized.

Even a clean room is not an ultimate defense. Attorneys Jim Bitetto and Kelly Talcott noted that as of two years ago, software can be patented.

Unlike copyrights, which protect only text, patents protect ideas.