“Russian immigrant” Sergey Aleynikov was indicted for “theft of trade secrets, transporting stolen property in foreign commerce and unauthorized computer access” according to a story in Friday’s New York Times. The article goes on to say that:

Prosecutors also asserted that Mr. Aleynikov, during time he was at Goldman, transferred thousands of files of computer code related to Goldman’s proprietary trading program to his home computers.

In a Bloomberg article from last summer it was reported that Mr. Aleynikov copied source code to Xp-dev.com, a website run by London resident Roopinder Singh utilizing servers in Germany. The website was providing a source code control system popular among open source developers. It is common for open source developers to share software around the world.

I do not know what software Mr. Aleynikov copied to the server in Germany or whether or not he unintentionally copied more software than he should have. However, there are several issues that come up.

Back in July, I wrote about Sergey Aleynikov and Open Source software. There, I listed a couple open source projects he had been involved with. Other articles report that Mr. Aleynikov was working on Erlang, an open source general purpose concurrent programming language. Erlang is covered by the Erlang Public License which requires that you provide copies of covered software that you modify. It is worth noting that this is covered by Swedish Law. This is a common feature of many open source projects.

Without knowing what code Mr. Aleynikov intentionally copied, we cannot know whether he was breaking U.S. law or simply fulfilling his legal requirements of Swedish law. Since Erlang and some of the related software is open source software from Europe, it does make some of the ‘foreign commerce’ issues sound a bit more dubious.

Of additional concern is the allegation that the code was ‘related’ to Goldman’s proprietary trading program. If any of Goldman’s proprietary trading program was written in Erlang, than the source code for Erlang, which law requires to be transported to foreign companies is ‘related’ to Goldman’s proprietary trading program. Goldman Sachs could be inadvertently forcing their employees to violate their own confidentiality agreements and U.S. law.

Companies get great benefits by using open source software. However, they need to understand what they are doing and their requirements about sharing changes they make to the open source software with the broader open source community. If Goldman Sachs and the United States Attorney’s Office is going after Mr. Aleynikov for fulfilling his obligations to the open source community, then they are doing a disservice to everyone who benefits from open source software, including themselves.