Software counterfeiting

Contrefaçon N.F. (XIII ^e s.) from contrefaire d'après façon, variant contrefaction, from Latin factio, action of counterfeiting a literary, artistic or industrial work, to the detriment of its author or inventor; result of this action. See counter-proof, copy, falsification, imitation, pastiche, plagiarism."

This definition from the Petit Robert immediately puts us on the subject.

Since software is a work of the mind, it logically falls into the category of literary or artistic works. However, since software is often an integral part of an industrial process, counterfeiting it can also involve making or counterfeiting an industrial work protected by patent, with all the economic consequences this can entail.

Logically, the legislator has considered software counterfeiting to be a criminal offence. However, a certain complexity arises from the fact that there is a whole range of nuances in assessing software counterfeiting, from simple inspiration to slavish copying.

In this document, we take a technical and legal look at software counterfeiting as part of the much broader field of counterfeiting in industries linked to new technologies. We then review the stages in the software development process, to introduce the different ways in which software counterfeiting can be assessed by both experts and the courts.

But before tackling the technical aspect, as the notion of counterfeiting is of a legal nature, it is worth giving the reader, who is not necessarily a lawyer, a few legal notions on the subject.