FAQ: Questions and Answers

[back to notice text] Question: Are licensing provisions prohibiting reverse engineering enforceable? Answer: While the validity of licensing prohibitions of reverse engineering has not yet been decided by courts, the conflict between state laws that would enforce these provisions and federal intellectual property law has been addressed. When considering cases where breach of contract or trade secret misappropriation is claimed (both state law claims), courts must first determine whether or not intellectual property law preempts those contracts enforced by the individual state. Preemption occurs when courts determine that federal intellectual property law must be considered in order to address the issues involved in the particular provisions. Section 301 of the Copyright Act provides that a state law claim is preempted if: (1) the work to be protected comes within the subject matter of copyright; and (2) the state-created right forming the basis of the state law claim is equivalent to any of the exclusive rights within the general scope of copyright." In order for the claim to be preempted it must first pass this equivalency test, which determines whether the state-created rights in upholding the contract are merely alternative articulations of the exclusive rights of copyright law. If the court determines that the contract provisions contain an "extra element" that require analysis of the contract to be preempted by copyright law, the courts generally proceed to an analysis of the possible infringement or exemption under fair use of the activities of the reverse engineer. [back to notice text] Question: What elements of a computer program are copyrightable? Answer: Section 102(b) of the Copyright Act provides that: "in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." This principle that copyright protects the expression of an idea but not the idea itself is fundamental to copyright law. Commonly referred to as the "idea/expression dichotomy," this distinction is particularly complicated in the context of computer programs. A software program must include many elements of computer code that are external to its particular use in order to function properly, including the specifications of the of the operating system, the computer on which the program runs, compatibility with other programs, and other widely accepted standards. These functional elements of a software program as well as those aspects of the software code that are in the public domain are considered ideas not protected by copyright law. [back to notice text] Question: What is disassembly or decompilation of a computer software program? Answer: In the development of software, the source code in which programmers originally write is translated into object (binary) code. The translation is done with a computer program called an "assembler" or "compiler," depending on the source code's language, such as Java, C++, or assembly. A great deal of the original programmer's instructions, including commentary, notations, and specifications, are not included in the translation from source to object code (the assembly or compilation). Disassembly or decompilation reverses this process by reading the object code of the program and translating them into source code. By presenting the information in a computer language that a software programmer can understand, the reverse engineer can analyze the structure of the program and identify how it operates. The data generated in the disassembly of a typical computer program is one to many files with thousands of lines of computer code. Because much of the original programmer's commentary, notations, and specifications are not retained in the object code, the reverse engineered code constitutes only a part of the program information included in the original source code. Engineers must interpret the resulting source code using knowledge and expertise to recreate the data structures of the original program and understand the overall design rationale of the system. Not all reverse engineering efforts require "decompilation" of software. Some "black box" reverse engineering is done by characterizing software through observation of its interaction with system components, other software, and other (external) systems through networks. [back to notice text] Question: How is reverse engineering different from circumvention? Answer: Circumvention, according to Section 1201(a)(3)(A), means "to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner." Reverse engineering, on the other hand, is the scientific method of taking something apart in order to figure out how it works. While not all acts of circumvention require the use of reverse engineering, the reverse engineering of works protected by technological mechanisms requires circumvention. The placement of digital protection systems on copyrighted works essentially fences in the information a reverse engineer seeks to discover about the way the product works. [back to notice text] Question: What stages are involved in the reverse engineering process? Answer: Since the reverse engineering process can be time-consuming and expensive, reverse engineers generally consider whether the financial risk of such an endeavor is preferable to purchasing or licensing the information from the original manufacturer, if possible. In order to reverse engineer a product or component of a system, engineers and researchers generally follow the following four-stage process: Identifying the product or component which will be reverse engineered Observing or disassembling the information documenting how the original product works Implementing the technical data generated by reverse engineering in a replica or modified version of the original Creating a new product (and, perhaps, introducing it into the market) In the first stage in the process, sometimes called "prescreening," reverse engineers determine the candidate product for their project. Potential candidates for such a project include singular items, parts, components, units, subassemblies, some of which may contain many smaller parts sold as a single entity. The second stage, disassembly or decompilation of the original product, is the most time-consuming aspect of the project. In this stage, reverse engineers attempt to construct a characterization of the system by accumulating all of the technical data and instructions of how the product works. In the third stage of reverse engineering, reverse engineers try to verify that the data generated by disassembly or decompilation is an accurate reconstruction the original system. Engineers verify the accuracy and validity of their designs by testing the system, creating prototypes, and experimenting with the results. The final stage of the reverse engineering process is the introduction of a new product into the marketplace. These new products are often innovations of the original product with competitive designs, features, or capabilities. These products may also be adaptations of the original product for use with other integrated systems, such as different platforms of computer operating systems. Often different groups of engineers perform each step separately, using only documents to exchange the information learned at each step. This is to prevent duplication of the original technology, which may violate copyright. By contrast, reverse engineering creates a different implementation with the same functionality. [back to notice text] Question: What are shrink-wrap, click-wrap, and browse-wrap licenses? Answer: In the context of computer software and the Internet, written agreements that indicate the formation of a contract between the user and the manufacturer have been replaced by shrink-wrap, click-wrap, and browse-wrap agreements. Shrink-wrap licenses refer to the cellophane wrapping that seals boxes of mass marketed software are commonly called "shrink-wraps." Software manufacturers generally attach license agreements inside the packaging of their products, which bind the consumer to the terms of the agreement upon removal of the shrink-wrap. Some courts have held that shrink-wrap licenses are unenforceable as contracts of adhesion, while other courts have considered them valid. An adhesion contract is a bargain drafted unilaterally by a dominant party, and presented as a final offer to a party with very little bargaining power. The terms are generally presented as a preprinted form to the weaker party, who lacks any realistic ability to negotiate the terms. If an individual chooses to return the product, however, they are no longer bound by the terms of the contract. Click-wrap licenses are another form of creating an electronic agreement, except that the license is included on the computer screen before installation rather than on the box. By clicking on a button that says "I agree" or "I accept," the licensee agrees to the terms of use of the contract. An important difference between click-wrap agreements and shrink-wrap agreements is the fact that the user actually has an opportunity to read the contract before using or installing the program. Browse-wrap agreements are contracts in which the terms of use are listed on a web site page. In such contracts, manufacturers presume to bind the user to the license terms merely by their visit to the web site or downloading software from that site. Courts are generally reluctant to hold such contracts enforceable because of the lack of assent, or explicit agreement, on the part of the user. [back to notice text] Question: What is reverse engineering? Answer: Reverse engineering is the general process of analyzing a technology specifically to ascertain how it was designed or how it operates. This kind of inquiry engages individuals in a constructive learning process about the operation of systems and products. Reverse engineering as a method is not confined to any particular purpose, but is often an important part of the scientific method and technological development. The process of taking something apart and revealing the way in which it works is often an effective way to learn how to build a technology or make improvements to it. Through reverse engineering, a researcher gathers the technical data necessary for the documentation of the operation of a technology or component of a system. In "black box" reverse engineering, systems are observed without examining internal structure, while in "white box" reverse engineering the inner workings of the system are inspected. When reverse engineering software, researchers are able to examine the strength of systems and identify their weaknesses in terms of performance, security, and interoperability. The reverse engineering process allows researchers to understand both how a program works and also what aspects of the program contribute to its not working. Independent manufacturers can participate in a competitive market that rewards the improvements made on dominant products. For example, security audits, which allow users of software to better protect their systems and networks by revealing security flaws, require reverse engineering. The creation of better designs and the interoperability of existing products often begin with reverse engineering. [back to notice text] Question: What is "intellectual property"? Answer: Intellectual property refers to the rights one has in the product of one's intellect. This includes copyright (rights in creative expression)and patents (rights in inventions, discoveries, methods, compositions of matter, etc.) which are granted by article I, section 8 clause 8 of the US Constitution which gives Congress the power to "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Related rights include trademark (rights in the names one uses to identify one's goods and services), trade secret (confidential business practices), unfair trade practice, passing off, trade libel, false advertising, misappropriation. Laws protecting most of these rights exist at both the state and federal level. "Proprietary rights" is just a general term meaning "one's own rights." [back to notice text] Question: Can I take a character from Shakespeare and use it in a very different context? Answer: Yes.  Shakespeare?s works are in the public domain. The public domain is the term we give to the realm of cultural resources that can be freely used by anyone, corporate or human.  It is sometimes characterized as the ?raw material? of creative work.  This raw material is public in the sense that it is not owned, but it can be transformed into property through the investment of creative labor.  It includes unpatentable ideas, abstract laws of nature, natural languages, common plots (e.g., a storyline in which the children of two families that hate each other fall in love), and historical facts.  It also includes most published copyrighted works 70 years after the author has died. [back to notice text] Question: Can I post a copyrighted image on my website? Answer: Maybe. In order to determine whether you can post a copyrighted image on your website, a court would apply the four factor fair use analysis. First, it is important to determine the purpose and character of the use. If the use is commercial in nature, rather than for nonprofit education purposes, it less likely to be considered a fair use. To determine if it is commercial, a court would consider whether the use was exploitative and for direct profit, or if instead any commercial character was incidental. Also, if the use is transformative and for a different purpose than the original work, it is more likely the first factor will weigh in favor of finding a fair use. For example, in Kelly v. Arriba Soft Corporation, the court found that posting "thumbnail" images on a website was a fair use because such images served a different purpose than the original images. Second, the court would consider the nature of the copyrighted work. The reproduction of a predominantly factual work is more likely to be considred a fair use than the reproduction of a highly creative one. Third, it is important to consider the amount and substantiality of the portion of the copyrighted image used. This inquiry looks at not only the quantity, but also on the expressive value, of the portion used. If a large amount of the original image is copied, or if the portion copied is substantially significant to the work as a whole, it is less likely the court will find such copying to be a fair use. Finally, the most important factor in this inquiry is the effect of the use on the potential market for the copyright owner's work. If posting the image on the website leads to a reduction in sales of the copyrighted work or discourages people from accessing the copyright owner's website, a court is more likely to find that the use is not fair and has an adverse impact on the copyright owner's market. These four factors will be evaluated by a court in a factual inquiry to determine whether the posting of the image would constitute a fair use. [back to notice text] Question: What is the purpose of the fair use defense? Answer: There is no easy answer to this question. However, one way to approach the question is to examine the purposes of the copyright laws. The clause of the Constitution that gives Congress the power to enact copyright laws indicates that the purpose of the given power is to "promote the progress of science and the useful arts" by allowing authors to secure the exclusive rights in their works for "limited times." Thus, many see the Constitutional scheme behind copyright as a kind of balance between (1) forming incentives for authors to create new works by giving them rights that will allow them to make money from their works, and (2) limiting the rights so that the works themselves are useful to the public and in turn advance the "progress of science and the useful arts." Fair use fits into this scheme by giving the public the right to use copyrighted works in certain situations even though the author has exclusive rights. That is, in some circumstances, such as certain uses involving scholarship or research, the "progress" referred to in the Constitution is best promoted and the public is best served by allowing a use of the copyrighted work. These uses are deemed fair because they are consistent with the power given to Congress to enact copyright laws.

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