May 23, 2003

Gator and reverse-engineering, more discussion

Regarding my reverse-engineering comment yesterday, John Palfrey kindly responded:

See Seth Finkelstein's blog  post of last night for a critique of the thinking around the methodology in Ben Edelman's Gator study.   Seth has done many good works in this field -- he's been cited by the EFF and others for his efforts -- and is certainly worth listening to as a general matter.  I don't happen to agree with this particular post, but in the interest of true open discourse, please go and check it out.

Thanks very much (not too many people did look, but it's the thought which counts).

Anyway, one of the very odd things for me, observing the evolution of the Net, is seeing certain arguments make their way up the status-chain. This particular issue, legal aspects of reverse-engineering and shrink-wrap licenses, is near and dear to my heart, since I've been dealing with it for many, many, years now. To demonstrate, I just dug up a discussion example from 1997, featuring this censorware item:

Unauthorized reverse engineering of the Software, whether for educational, fair use, or other reason is expressly forbidden. For the purposes of this license the term "reverse engineering" shall apply to any and all information obtained by such methods as decompiling, decrypting, trial and error, or activity logging.

Again, that was being talked about in 1997 (in part as a result of my work, and in part others done independently).

Moreover, if the Gator license is modified in the future to say we-really-mean-it, no reverse-engineering, whether by decompiling, packet-sniffing, or Ouija board, it wouldn't at all be the first time that sort of thing had been done.

Now, fully aware of to whom I'm replying, take a look at the "Chilling Effects" Reverse Engineering FAQ, pointing to the case Kewanee Oil v. Bicron: (my emphasis below)

The law protects the holder of a trade secret against disclosure or use when the knowledge is gained, not by the owner's volition, but by some improper means, which may include theft, wiretapping, or even aerial reconnaissance; however, a trade secret does not offer protection against discovery by fair and honest means, such as by independent invention, accidental disclosure, or by so-called reverse engineering, that is by starting with a known product and working backward to divine the process which aided in its development or manufacture.

That seems a very good description of the kind of testing being done to investigate Gator (except here it's more at "functioning" instead of "development or manufacture"). Certainly a good enough fit to be sued over it, if one was vulnerable.

Now regarding:

P.S., Seth, as to your note about employment: You might check with Cooley Godward, Gator's lawyers, to see if they have a position open.  :)

I'd like a fat expert-witness fee, thank you :-). No offense taken, but this part of the discussion is very familiar too. To me, Mike Godwin did the defining example of it, when, while he was losing a debate regarding censorware blacklists being subject to copyright, he proclaimed "You friends of CyberPatrol, have at me!" At the time, Peter Junger wrote an excellent reply article which has stayed with me:

If one insists on discussing imaginary facts and also on ignoring the arguments that favour the bad guys, one is going to have one's head handed to one when one actually goes into court willfully unprepared.

By Seth Finkelstein | posted in legal | on May 23, 2003 10:19 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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