FAQ: Questions and Answers

[back to notice text] Question: Who may hold a copyright? Answer: A copyright ordinarily vests in the creator or creators of a work (known as the author(s)), and is inherited as ordinary property. Copyrights are freely transferrable as property, at the discretion of the owner. 17 U.S.C. ?201(a), (d). In some cases, however, the actual creator is not considered the author of the work for copyright purposes: if a work is created by an employee in the regular course of her employment, it is considered a "work for hire" and the employer, not the employee, is considered the "author" of the work for copyright purposes. For example, in the absence of an agreement to the contrary, a staff writer for a newspaper does not hold the copyrights in her product, the newspaper does. This only applies to works created in the ordinary course of employment: if the same reporter writes a novel in her spare time, she herself owns that copyright. Certain commissioned works may also be considered works for hire. 17 U.S.C. ?201(b); Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). The term "work for hire" is defined in 17 U.S.C. ?101. [back to notice text] Question: What is copyright protection? Answer: A copyright protects a literary, musical, dramatic, choreographic, pictoral or graphic, audiovisual, or architectural work, or a sound recording, from being reproduced without the permision of the copyright owner. 17 U.S.C. ?102. The copyright in a work vests originally in the author(s) of the work. The author(s) may transfer the copyright to any other party if she(they) choose(s) to do so. 17 U.S.C. ?201. Subject to certain limitations, the owner of a copyright has the sole right to authorize reproduction of the work, creation of a work derived from the work, distribution of copies of the work, or public performance or display of the work. 17 U.S.C. ?106. This right lasts for the life of the author plus seventy years; or in the case of a copyright authored by an entity (a work-for-hire), for ninety-five years. 17 U.S.C. ?302. [back to notice text] Question: What may be copyrighted? Answer: In order to be copyrightable, a work must be 1. fixed in a tangible medium of expression ; and 2. original. Copyrights do not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries: they only protect physical representations. 17 U.S.C. ? 102(b). Anything unrecorded is not copyrightable, in as much as it is not "fixed;" for example, dances and improvisations themselves are not copyrightable: only visual recordings or written descriptions of them are. Say I go to a jazz concert and listen to a soloist's improvisation. If I have the musical equivalent of a photgraphic memory, I may be able to reproduce that improvised solo in my own concert on the following night. If that solo exists nowhere but my memory (i.e. the original concert was not recorded) I may play it with impunity, because it is not "fixed" and therefore not copyrightable. But, if the original concert was recorded (e.g. taped, videoed, transcribed on paper), even by an amateur, I am barred from playing my version of the solo. Even a bootleg recording (for which the recorder can be punished under section 1101 of the copyright act) qualifies for copyright protection: a work need not be formally published in order to be "fixed;" it need only be saved in a tangible form. 17 U.S.C. ? 104. The originality requirement of 17 U.S.C. ?102 demands that a work, in order to be copyrigted, be independently created by the author. In order to be original, a work need not necessarily have novelty, artistic merit, truth, or lawful content. For example, a replica of a painting in the public domain may not be novel, but it is copyrightable. An item of sculpture designed to be used as a pipe for smoking marijuana may not be designed for legal ends, but it is copyrightable. A false biography is copyrightable, although it may well also be cause for defamation litigation. [back to notice text] Question: What is copyright infringement? Are there any defenses? Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above. The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors: the purpose and character of the use the nature of the copyrighted work the amount and substantiality of copying, and the market effect. (17 U.S.C. 107) The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use." Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody. [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 an unauthorized use of the copyrighted work. These uses are deemed fair because they are consistent with the power given to Congress to enact copyright laws. [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. [back to notice text] Question: Where is the fair use doctrine codified? Answer: The fair use doctrine, originally a judge-made doctrine embodied in case law, is now codified at Title 17 of the United States Code, Section 107. This section provides: Section 107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A [setting forth copyright owners' exclusive rights and visual artists' artistic rights], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include ? the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [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 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: 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 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 are the different uses of reverse engineering? Answer: A common misperception regarding reverse engineering is that it is used for the sake of stealing or copying someone else's work. Reverse engineering is not only used to figure out how something works, but also the ways in which it does not work. Some examples of the different uses of reverse engineering include: Understanding how a product works more comprehensively than by merely observing it Investigating and correcting errors and limitations in existing programs Studying the design principles of a product as part of an education in engineering Making products and systems compatible so they can work together or share data Evaluating one's own product to understand its limitations Determining whether someone else has literally copied elements of one's own technology Creating documentation for the operation of a product whose manufacturer is unresponsive to customer service requests Transforming obsolete products into useful ones by adapting them to new systems and platforms [back to notice text] Question: What kind of proof is necessary to show the copying of a computer program? Answer: Courts determine whether or not copying occurred, rather that the independent creation of a program, by comparing the two programs for evidence of copyright infringement. The determination of copyright infringement is done through an analysis of whether there exists a "substantial similarity" between the initial work and the product of the reverse engineering effort. Making such a determination can be quite complicated in the software context since different parts of the computer code may be similar due to the industry standards of the overall structure and user interface of programs as well as their compatibility requirements. In order to prove a claim of copyright infringement, the burden is on the initial work's owner to show that the defendant had access to the original code. [back to notice text] Question: What "copying" of computer programs is permitted under copyright law? Answer: Copyright law protects any work, including computer software, that is "fixed in a tangible medium of expression" and which contains a "modicum of originality." While making a copy of an orginal work generally constitutes copyright infringement, the very nature of computer software requires the making of a copy of original elements every time a program runs. In order to solve this problem, Congress included specific exemptions within copyright law outlining the permitted uses of a computer program. Section 117 of the Copyright Act provides that: [I]t is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it used in no other manner, or that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

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