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William B. Esq.
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 3633
Experience:  Civil litigation attorney for individuals and businesses.
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I developed a software application at great expense of time. Looking

Resolved Question:

I developed a software application at great expense of time.

Looking at the following scenario: I found out and retained evidence that a malicious third party A hacked into my workstation (or a computer managed by third party provider on which the software is running), and tempered with the software (probably attempted to reverse engineer it) ?

1) Did A break any law ? Is the offense civil or criminal ? What does A risk if found guilty ?
2) What is the most effective legal strategy from my perspective ? Considering that my prime objective is to monetize this and future software applications, hence recouping money lost on this application and deter A or any other parties going forward.
Submitted: 1 year ago.
Category: Legal
Expert:  William B. Esq. replied 1 year ago.

William B. Esq. :

Dear Customer, thank you for choosing Just Answer. I would like to assist you today.

William B. Esq. :

The actions you are describing create civil liability (not criminal).

William B. Esq. :

The causes of action if you wished to pursue them would be under torts of "intellectual property infringement" "intentional interference with business relationship", and "conversion"

William B. Esq. :

While I cannot give you a specific legal strategy through this forum (we are prohibited from practicing law through this website), you do have the option of suing this person in civil court for injunctive relief (prohibiting them from using your software in the future under the penalty of paying you future damages or other money relief), you may sue them for damages caused to your software, and you can sue them for punitive damages for their intentional conduct (while you cannot sue for a specific amount, the Court or a jury will set a specific amount for these damages after trial based on an assessment of their wrongdoing).

Customer:

Thank you. Now what if the software I developed competed with an existing and established market participant and one could argue that their action restricted competition, perhaps intentionally. Would that not be regarded as a violation of the Sherman Act and would that not imply criminal misconduct ?

William B. Esq. :

I don't think so.

William B. Esq. :

Violations of the Sherman Act require some more specific legal analysis that perhaps speaking with an attorney in person may be able to assist you with, but under the set of facts you have posted, this does not sound like a Sherman Act violation, it sounds like a civil act of one person taking your intellectual property for their own use (reverse engineering) as opposed to the market participant itself intentionally sabotaging your product to defeat competition in the marketplace.

Customer:

Ok thanks. In a different scenario where a market participant itself intentionally sabotaging your product to defeat competition in the marketplace, would that constitute a violation of the Sherman Act ? What would be the appropriate response to such a scenario, i.e. should the incident be reported to a regulator rather than prosecuting on my own name ?

Expert:  William B. Esq. replied 1 year ago.
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Expert:  William B. Esq. replied 1 year ago.
Dear Customer,

I do not believe that this would qualify either.

The Sherman Act deals with price rigging. You can find information on "how to identify Sherman Act violations" on the US Attorney's Website here: http://www.justice.gov/usao/eousa/foia_reading_room/usam/title7/ant00008.htm

It is extremely difficult to get the federal or state government to prosecute a civil claim on your behalf (even if you do, the government generally expects or relies on private parties to provide a great deal of the manpower necessary to perform the prosecution of the case due to budget restrictions).
Customer: replied 1 year ago.

Understood, thanks for clarifying. I know that many States have explicit laws against Sabotage (against commercial competitors), in some cases logging it as a serious offense. How is Sabotage regarded in the New York State ? (Whether dictated by State or Federal Law)

Expert:  William B. Esq. replied 1 year ago.
intentionally damaging another person's Property is actionable. The cause of action is "trespass to chattell" ( this is because your claim is for personal property as opposed to land or " real" property). The benefit to a civil claim in this respect is that you can name all of the parties you believe are responsible, and those parties you want " injunctive relief" against to stop them from future use.

there have been limited cases of federal prosecution of software theft, but these deal with anti-terrorism statutes and the relatively recent homeland security initiatives. Unfortunately, software development is largely unprotected unless you have patent or copyright protections.

To discuss the exact circumstances of your case and to see if the local authorities are willing. to assist in a criminal investigation, I would recommend speaking with your local police department ( usually it is the financial crimes division, but ask and they can direct you) or district attorney. A criminal prosecution will result in criminal penalties for those actively involved and convicted of a crime but it will not give you any wider protection against the unfair use of your hard work.

You may pursue both remedies at the same time.
Customer: replied 1 year ago.

With regards XXXXX XXXXX Case:


 


While the case involved a relatively low-level ex-employee at a financial firm, the government has taken a particularly hard line. The district attorney, Cyrus R. Vance Jr., and Preet Bharara, the United States attorney in Manhattan, have made the prosecution of corporate espionage and high-tech theft a top priority.



“Employees who exploit their access to sensitive information should expect to face criminal prosecution in New York State.” Cyrus R Vance



The district attorney charged Mr. Aleynikov with the unlawful use of secret scientific material and duplication of computer-related material, both felonies under New York State law.



Are you saying that the enforcement is stricter against employees of large corporations than against corporations themselves ?


 


 

Expert:  William B. Esq. replied 1 year ago.
I am not familiar with the specifics of the case, but my understanding is that this matter involved espionage (homeland security issues), the size of the company, or the victim is immaterial. Again I would recommend contacting local law enforcement to determine whether they will be able to assist in your case as I cannot tell you that through this internet forum. It certainly will not hurt to ask them if they are willing to look into it.
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 3633
Experience: Civil litigation attorney for individuals and businesses.
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William B. Esq.
William B. Esq.
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3633 Satisfied Customers
Civil litigation attorney for individuals and businesses.