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DoJ vs. Private Software Developer

In this case General Systems Group (GSG) was retained by the United States Department of Justice (DoJ) to analyze the source code of a complex litigation support package developed by a private party. The package consisted of 236,000 lines of source code (approximately 10 million bytes of source code), nine major subsystems, and hundreds of programs. GSG was engaged with extremely short lead time--just two weeks prior to the trial date.

The issue in question was a claim, on the part of the package developer, that in spite of the fact that the entire package had been developed over several years through a number of DoJ grants, the most recent version of the package was to be considered proprietary on the basis of alleged numerous proprietary changes to the source code and the addition of several new proprietary programs.

Going "Straight to the Source"

GSG was able, in the short time available, to process the massive amount of source code and collect and document the following facts:

  • There were 100 "proprietary" changes resulting in 3,500 new or changed source lines--that is, only 1.5 percent of the total source code.
  • Eight changes accounted for 2,000 new or altered source lines of the total of 3,500 source lines new or changed--that is, only eight changes accounted for 57% of all the "changed" source lines.
  • The least significant 72 changes accounted for only 563 altered source lines while the largest change accounted for 565 lines of source. In other words, of the 100 changes 72 were basically trivial.
  • There were only two "proprietary" programs, created by the developer without contract to DoJ. These amounted to a total of 5,900 source lines, or only about 2.5 percent of the total source code.
  • The total amount of source code which could, under the most liberal interpretation, be claimed to be "proprietary" was thus found to be:
    3,500 + 5,900 = 9,400 lines,
    or only 4% of the source code.

GSG's Expert Opinions

On the basis of the above facts, GSG was able to offer the following expert opinions:

Assuming the lowest possible programmer productivity and the highest labor costs, the actual "proprietary" contents could be estimated to correspond to:

  • At most 4 person years worth of effort

  • At most $500,000 of development expense

This maximum possible development expense for the new, proprietary portion was absolutely dwarfed by the amount of public money DoJ had invested in the development of the whole package, thus invalidating the vendor's claim that the package was no longer in the public domain.

In addition GSG was able to present expert testimony on the quality of the developer's systems for tracking software development costs; to counter totally the testimony of the developer's expert witness; and to present a clear opinion on what the changes comprised. The latter opinion made it clear, in turn, that the motivation for the changes was not innovation but rather correction of defects of the earlier version.

The key advantage GSG brought to the DoJ legal team was the extreme speed and sound technical approach (based on very sophisticated computer tools) used to unearth this bonanza of evidence from the notoriously thorny medium, computer source code. The speed and thoroughness of our analysis truly bewildered the other team causing them to make a number of bad moves and contradictory statements further weakening their overall case.

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