HT-2021-000363 - [2025] EWHC 532 (TCC)

Fecha: 10-Mar-2025

Compiler listings – summary of the dispute

Compiler listings – summary of the dispute

402.

The allegation in each case is that LzLabs wrote test programs which were designed to engage particular parts of the IBM COBOL and/or PL/I and or C/C++ runtime functionality but that served no business function in their own right. At LzLabs’ request, Winsopia compiled these test programs using the relevant IBM compiler, analysed the compiler listings, and sent to LzLabs both the output of the test programs and the compiler listings, revealing a full set of pseudo-assembly language instructions, including instructions and data structures inserted by the relevant compiler to set up the relevant Language Environment for the program and to manage the interaction between the program and the various runtime routines supporting it, as well as:

the names and purpose of runtime modules used in the execution and support of the relevant program;

ii)

the address in memory of each runtime routine in the IBM vector table that the relevant language runtime environment maintains;

iii)

the arguments that were passed to each runtime routine;

iv)

technical comments explaining what the compiler had done and why;

the identity, content, and layout of IBM control blocks used by the relevant application and the runtime; and

vi)

fragments of IBM mainframe software inserted by the compiler to handle initialisation of the relevant runtime and interaction between the runtime and the application.

403.

IBM’s case is that compilation of the test programs, the generation of compiler listings as a result of such compilation, and the analysis of compiler listings by Winsopia amounted to reverse engineering of the high-level language runtime environments. Even where redactions were made, the process did not remove the assembler instructions (fragments of IBM software created by the compiler) or mechanisms used by the relevant IBM language runtime to interact with running applications.

404.

The defendants’ case is that the acts carried out by Winsopia in relation to the compiler listing allegations did not concern ICA Programs but rather customer applications, and fell squarely within the observation, study and testing rights under Article 5(3) of the Software Directive.

405.

In particular, the defendants submit:

the relevant computer program was a test program or customer application, not an IBM Program provided to Winsopia by IBM under the ICA;

ii)

Winsopia was a lawful user of the relevant computer program;

iii)

Winsopia was entitled under the ICA to perform the acts that it did, such as compiling and generating compiler listings for test programs, storing the resulting output from the compiler, running the test programs, and displaying the output from those test programs and the compiler;

iv)

each of the matters being observed, studied and tested by Winsopia related to ideas and principles underlying computer programs, such as interfaces contained in, and used by, the test programs; the division of responsibility between the executing program and the runtime environment; and the nature of the interactions between the compiler, customer application, and runtime environment.

406.

Each specific allegation is considered below.