Companies outsourcing their software development offshore can get stung by industrial espionage and poor intellectual property safequards.

The Sting

On a typically steamy STEAMY New Delhi day in late August 2002, Nenette Day walked into the Ashoka, one of the city's best hotels, for a meeting with Shekhar Verma. Verma had been fired from his job at Geometric Software Solutions Ltd (GSSL), an outsourcer based in Bombay. He claimed to have the source code for SolidWorks Plus's 3-D computer-aided design package, which GSSL was debugging. Verma had contacted a number of SolidWorks' competitors and offered to sell them the source code. Day had taken the bait and flown to New Delhi. After confirming that what Verma possessed was indeed SolidWorks' source code, Day began negotiating on price, eventually bargaining him down to $US200,000 for the code. The deal struck, Day got up and left the room. Then agents from India's Central Bureau of Intelligence (CBI) swept in and arrested Verma. Day was not arrested - she is actually a special agent from the FBI's Boston Cybercrime Unit and had gone undercover to work with the CBI on this case, the first undercover operation for the FBI in India.

The arrest led to the first prosecutorial filing for outsourcing-related intellectual property (IP) theft in India. Given that software outsourcing was a multibillion-dollar business in India last year, the trial will draw close scrutiny from both sides of the world. Sound like an open-and-shut case? Day herself is not nearly so confident. "With no case precedents, the reality is we have no idea how this plays out under their law," she says. Day also says that Verma made two small mistakes (she declines to specify them) without which he could have already got off scot-free, and that after a full week in India working with the prosecutors last northern autumn, Day still doesn't understand the applicability of at least one of the critical charges.

Intellectual property, if stolen, "is a genie that can't be put back in the bottle", says Day. Currently, she says, "there is really no law to protect companies' intellectual property".

Companies need to think seriously about what that means. Consulting company McKinsey estimates that by 2010, the IT industry will save $US390 billion through offshore outsourcing of software development. But it also opens up new channels of industrial espionage in bitterly poor nations that often don't have laws protecting foreign companies and rarely enforce whatever laws may exist. India, obviously eager to protect its national income from outsourcing, is scrambling to demonstrate that it takes foreign intellectual property seriously. Some observers say that other countries vying for outsourcing dollars are even worse when it comes to providing legal protection for intellectual property. Court cases are still relatively hard to find, but that's about to change. Smart companies need to re-examine their outsourcing contracts and make sure they aren't at risk of becoming the test cases.