Wired reports that, three days ago, the US 2nd Circuit Court of Appeal has declared that code is not property and cannot therefore be stolen; there is no intent to deprive the owner of the object’s use. They also ruled that the perpetrator, there is no doubt that the code was removed from Goldman Sachs network, could not be prosecuted under the US Economic Espionage Act since the code in question was not used in commerce. I don’t actually know what the code did, but we can be sure that it was used in commerce, or it was a regulatory compliance program. If it didn’t have one of these two purposes, Goldman Sachs wouldn’t be doing it, and wouldn’t have wanted to keep it secret.
Does this mean that only traded software can be the object of the espionage act? If so I am not sure this is where we want to be.
Part of Goldman Sachs’ problem is that they wanted to keep the code secret and there are many reasons to want to do so. However patent and copyright protection require the intellectual property owner to publish their ideas, or the expression of their ideas. Another part of the problem is that people wanted to see Aleynikov go to prison and breach of employee confidentiality wasn’t sufficient to get him there.
As techdirt.com reports in their article,
Still, the overall ruling here is good, though it could have been more complete.
I wonder if there will be further appeals, but it’s an important stake in the ground. Copyright infringement is not theft.
This was also covered at engadget.com.