May 22, 2003

GATOR and reverse-engineering

[I've gone back and forth as to whether to post this, I've gotten some indication I won't come out ahead for saying it. Maybe saying unhappy things like the following is why I'm doomed never to be a political success :-(]

With regard to testing Gator, Donna Wentworth at Copyfight has reported a discussion in Berkman Center, in part:

The question arose as to whether this research is potentially barred by the DMCA. It is not. Nor, observed Ben in some surprise, does the Gator license agreement speak to the situation. Dave Winer said, "It will soon, I imagine." To which John Palfrey replied, "Ah, yes--the Ben Edelman clause."

Well, here goes my chance of ever working at the Berkman Center ...

Sigh. I've just written, with regard to Google-ranking, about it being a different world for columnists at the New York Times, than bloggers. With regard to legal threats, it must be a very different world over there at the Berkman Center. Double sigh. Harvard lawyers and similar don't have to worry about SLAPP-like lawsuits. It's a matter of perspective.

Folks, of course the license prohibits any reverse-engineering! I have yet to see a commercial software license which did not.

This would be blindingly, blatantly, obvious to you if you had ever had to seriously worry about being sued, and needed to consider what could be thrown at you. Not what could be argued in defense by a legal team. But rather, what the prosecuting lawyer would claim in the lawsuit. The Gator license (I grabbed it out of the binary) states explicitly:

You may not modify, reverse-engineer, decompile, disassemble, or otherwise discover or disassemble Licensed Materials equivalent of Licensed Materials in any way. You do not have the right to create derivative works of Licensed Materials, and you agree not to attempt, or allow others to attempt, to reverse engineer Licensed Materials and/or modify Licensed Materials source code.

It doesn't say "You may not reverse-engineer, unless you do it in part by asking many, many, people to each help out a little bit with the testing". Or "You may not allow others to attempt, unless you do it ON THE INTERNET". In fact, I'd say the license is extremely clear on this point - look at that clause about "allow others to attempt". Now, it may not be legally enforceable, if one has the ability to fight a lawsuit. But it sure doesn't seem unaddressed.

Remember, my point here isn't against it being possible, advisable, wise, valuable, laudatory, etc, to make a public policy argument as to the social benefits for reverse-engineering. Or a complex First Amendment argument for allowing observation-based testing. I'm all for it! But rather, there's some sort of notable cross-cultural phenomena here in any belief that the general topic isn't even addressed. Consider this part of Bowers v. Baystate:

In this case, the contract unambiguously prohibits "reverse engineering." That term means ordinarily "to study or analyze (a device, as a microchip for computers) in order to learn details of design, construction, and operation, perhaps to produce a copy or an improved version." Random House Unabridged Dictionary (1993); see also The Free On-Line Dictionary of Computing (2001), at (last visited Jul. 17, 2002). Thus, the contract in this case broadly prohibits any "reverse engineering" of the subject matter covered by the shrink-wrap agreement.

That's what someone not in a privileged position would have to face. It's right there.

By Seth Finkelstein | posted in legal | on May 22, 2003 05:25 PM (Infothought permalink) | Followups
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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