Reverse-engineering vs. fair-use, and censorware examples
Findlaw has an interesting article "Should Software Companies Be Able, Through Contracts, To Prevent Competitors From "Reverse Engineering" Their Products", by Chris Sprigman. It's a very good discussion of the subject. But there's a few places which could use some commentary:
Minor point:
Now, however, some companies whose software has been reverse engineered have started to fight back. They have added anti-reverse engineering provisions to the "shrinkwrap" licenses that accompany their products.
"Now"? This isn't new. I can't recall ever seeing a commercial shrinkwrap license without prohibitions against reverse-engineering. I just found a censorware example from 1997, with a reply indicating this issue goes back decades (n.b., this is in part why I did my pioneer work against censorware , in virtual anonymity for so long).
Major point:
Reverse engineering itself, then, has been held to be fair use.
There's a difference between the idea that "Reverse engineering itself, then, has been held to be fair use", per se, intrinsically, and that certain instances of reverse engineering have been held to be fair-use, but others have been denied as fair-use. That is, between is fair-use, versus could be, but also might not be, fair-use. A reader of that article can easily get the impression that the courts have said reverse-engineering itself is always permitted as fair-use, whereas they've also said in other cases that it's not fair-use.
In particular, of special interest to me, the Cyberpatrol lawsuit, regarding programmers who reverse-engineered that censorware, has the following nasty things to say about that reverse-engineering of censorware:
43. Jansson and Skala admitted that they reverse engineered and decompiled Cyber Patrol Cyber Patrol, which violates the Cyber Patrol license agreement and creates an intermediate copy of Cyber patrol. ... In either case, by creating an intermediate copy of the Cyber Patrol software the defendants committed a prima facie copyright violation. ...No Fair Use Defense
44. Fair use is a statutory affirmative defense to conduct otherwise actionable under the copyright law. ...
45. In general, any claimed "fair use" must be "consistent with the ultimate aim [of the Copyright Act] to stimulate artistic creativity for the general public good" ...
46. It is the defendants' burden to demonstrate such "fair use." ...
47. The individual defendants have no "fair use" defense here because they have neither asserted it nor submitted evidence supporting any fair use defense. ...
48. In addition, the purpose of the copying here is inconsistent with the general public good. The individual defendants' avowed purpose for decompiling CyberPatrol was to allow "youth access" to inappropriate content on the World-Wide-Web. That purpose contradicts the public interest as specifically found by Congress ...
49. Finally, to negate fair use one need only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work ...
50. By their own admission, Jansson and Skala created the Bypass Code to "break" CyberPatrol ... Software explicitly designed to make CyberPatrol ineffective for its intended use can do nothing other than "adversely affect the potential market for the copyrighted work" ...
So whether reverse-engineering is fair-use also has to do with whether the court finds the specifics to be in "the general public good".
Disclaimer: I'm not a lawyer. But as the saying goes, the hound was only running for his dinner, but the hare was running for his life.
By Seth Finkelstein |
posted in censorware
|
on September 27, 2002 10:30 AM
(Infothought permalink)
