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Party A (not necessarily a company) writes software. The software can be open source or closed source, I'm not sure it matters for the sake of this argument. Party A has license terms on their software that restricts copying or at least requires attribution.

Company B also writes software. Company B's software is closed source and commercial. Assume that they use strong enough obfuscation on their software before releasing to their end users such that the released product's compiled code is unintelligible and can't be reverse engineered back to the source code.

Someone accuses Company B of using Party A's source code in their software without properly following the license terms. This could be outright copying and use of proprietary code from party A, improper attribution or some other breach of the license terms while using A's code.

Company B has a right to keep their source code private from the general public. I understand that this doesn’t mean they have a right to keep it secret in legal proceedings.

Given that the source code is kept secret from the general public, how can a legal challenge against company B ever be successfully mounted for this accusation?

I would assume that if the evidence was strong enough then a court would order company B to allow its code to be reviewed by a 3rd party appointed by the court.

If that assumption is correct then the question becomes what level of evidence is considered strong enough?

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  • Some cases like this have been handled with “copyright traps”/Easter eggs. Like you hit a secret key combination and a hidden message pops up.
    – SegNerd
    Nov 12, 2021 at 22:18
  • @SegNerd Traps would not work. B's ability to obfuscate the code suggests his ability to detect and remove the traps A implemented. Nov 12, 2021 at 23:15

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Discovery

Company B applies through the court for an order that Company A provide their source code. Company A provides the source code.

Company B has a legal right to keep their source code closed source and accessible only to employees.

is just wrong. When Company B (or anyone else) sues, they have to produce it. Closed source means you don’t use open source software, it doesn’t mean you have a right to secrecy in legal proceedings.

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  • "it doesn’t mean you have a right to secrecy in legal proceedings." Yes obviously, but what level of evidence is required to apply for discovery in the first place?
    – F Chopin
    Nov 12, 2021 at 22:25
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    @Karl none. You issue your statement of claim and, assuming it survives motions for summary dismissal, you are off and running and can ask for whatever relevant documents you like.
    – Dale M
    Nov 12, 2021 at 22:28
  • @Karl In federal court in the U.S., new pleading requirements (also adopted in Colorado courts) do indeed post a serious barrier to this kind of lawsuit (i.e. any lawsuit where a key fact is known only to insiders prior to discovery). faegredrinker.com/en/insights/publications/2016/7/…
    – ohwilleke
    Nov 12, 2021 at 22:32
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    Surely there must be some initial level of evidence required to prevent summary dismissal?
    – F Chopin
    Nov 12, 2021 at 22:40
  • What makes company B think company A copied their software? That would be the "initial level of evidence". Now as Mr. Trump learned the hard way, a vivid imagination is not enough for this, but an actual reason is required.
    – gnasher729
    Jun 7 at 14:30

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