Reverse engineering is not an inviolate right
Reverse engineering is not an inviolate right
Actually, contracts control. I can have a privilege to do something, but then can waive that privilege. So too the privilege to make limited copies for purposes of some forms of reverse engineering.
Reverse engineering is not an inviolate right
Actually, contracts control. I can have a privilege to do something, but then can waive that privilege. So too the privilege to make limited copies for purposes of some forms of reverse engineering.
“Reverse engineering” is the process by which the owner of a copy or a product takes the product apart in order to discover how it works. This has been an important feature of business practice in industries where much technology is not protected by patents or copyrights – if I sell you a product and you can find my secrets by dismantling it, so be it. You are entitled to do so.
But – what if the reverse engineering requires that you make copies of my copyrighted work? Different story. That is permitted only if the copies are fair use. It is fair use in some cases. But not all cases. There are cases on this, but I will leave discussion of them and that issue for another time. The cases allow making copies only if and as needed to obtain information not protected by copyright.
What if the contract you agreed to says you can’t do it? Should that contract be enforced? Of course. If I can agree to waive my Constitutional privilege against self-incrimination, my right to speech, and other fundamental rights, certainly I can contractually waive the privilege to reverse engineer a product.
While some lawyers, such as Jonathon Band, and some organizations, such as the EFF, claim that reverse engineering is an inalienable right, that viewpoint really comes from companies that need to do reverse engineering in order to stay competitive. Is Sun Microsystems listening to this?
Several federal statutes protect limited reverse engineering, but they do not over-ride contractual agreements to the contrary. The recent Altera case Altera Corp. v. Clear Logic, Inc., 2005 WL 2233252 (9th Cir. 2005). said the same thing in reference to the SCPA. The court held that a claim for interference with contract was not preempted because the contract itself provided an extra element. The contract here limited licensees to sole use of the chip, but the defendant allegedly induced a licensee to allow reverse engineering. The court commented: “If a state law claim includes an "extra element" that makes the right asserted qualitatively different from those protected under the Copyright Act, the state law claim is not preempted by the Copyright Act.Most courts have held that the Copyright Act does not preempt the enforcement of contractual rights.We find the logic of these cases persuasive here.”
Furthermore, the court held that allegations of copyright misuse were not applicable to the contract claim:
When copyright misuse applies, we do not allow enforcement of the copyright for the period of misuse. Because the remedy for copyright misuse is equitable, it makes little sense to allow Clear Logic to proceed on an independent claim for copyright misuse when there has been no allegation of copyright infringement. We have already rejected Clear Logic's copyright preemption argument. We cannot now void the license agreements under the pretext of refusing to enforce a copyright that has not been asserted. Copyright misuse is not a defense to the state law claims asserted by Altera.
In this, the court set an appropriate boundary. We should pay attention to it.
The Davidson case and the Bowers case reach the same conclusion.
It is time to recognize the difference between contract obligation and property rights. The only statute that addresses reverse engineering as a contract law issue is the 2002 Draft of UCITA. It gives special protection for a limited range of reverse engineering notwithstanding contrary contract terms. But, like many political compromises, it was probably a mistake to do so.
The agreement should and does control in most modern law in the U.S.
Sun Microsystems reverse engineers, among other types of code, proprietary software interface protocols (e.g. Microsoft Office document structures like .doc, .xls, .ppt, etc.) that, though copyrighted, add no value to innovation or social utility, but rather serve as artificial lock-ins to a particular software implementation. Appreciate the difference: creating and copyrighting the code for a more functional version of Word adds social utility value and increases competition; creating and copyrighting file formats that, absent reverse engineering, are incompatible with other competing software packages, adds value only to Microsoft and shrinks the pie for society. From this perspective they are decidedly anti-competitive and anti-innovation.
We should not allow entities to contract away their right to reverse engineer such works, even if they want to. Such a privilege should be inviolate, and can be distinguished from other rights that can be contracted away, like the fifth amendment privilege, in that signing away most other privileges adds or removes value only for the individual, whereas allowing companies to disclaim their right to reverse engineering certain types of code detracts from the utility and innovation that flows to all society. Once corporate owners of copyrighted interface protocols gain sufficient market share, their juggernaut can be wielded to compel virtually any comers that want access to their end-user code to, as a condition of accessing the code in the first place, sign on the dotted line that they won't reverse engineer it.
Social utility demands that we scrupulously protect the right to reverse engineer works that add no social value, even against entities that would willingly sign away their own right to do so. Alas, I'm only a first-year student at UH Law and haven't taken your Intellectual Property course yet, so I can't raise a case-analysis argument. But as a Sun Microsystems employee I'll be sure to do just that when I do take your course! :-)
I'd like to argue against Michael. (Well, not argue, but just talk, probably) My understanding about Michael's opinion is that reverse engineering of a company's proprietary software interface should be allowed, because that interface add no value to innovation or social utility. But, those software code is the result of innovative effort of the company. Even though that company dominates the market, the company cannot be said to be anti-competitive. The society or the customers would be free to choose other software codes, like Sun's star office. Social utility would be vague in this case. Another company, like Apple, would copyright its own proprietary, peripheral interface of ipod. Any third pary which wants to jump into ipod market should get the official license from Apple. Is this only for Apple? From the perspective of social utility, this kind of contract or license between Apple and third parties would enhance clients' benefit by guaranteeing hassle-free connection between ipod and other peripherals. Likewise, MS's ban on reverse engineering would be beneficial to customers.
Well, it would be problematic that MS blocks any attempt to provide the compatibility between MS office file formats and Star office file formats. But, the question remains. The compatibility is really requested by customers or only by Sun?
shrinkwrap license is not a contract which we think in general commercial transaction because the consumers do not read the end user license agreement without breaking the seal. some courts reason that end user can refund the program after reading the license agreement which they cannot accept. but any retailers do not give full refund after breaking seal.