USA / COPYRIGHT / REVERSE ENGINEERING OF SOFTWARE

Entertainment Law Review (Loyola Law School), Vol 20 No 3, 2000

Reverse Engineering of Software: An Assessment of the Legality of Intermediate Copying

Terril Lewis

This article begins with a salutary reminder of the Supreme Court’s view that "the primary objective of copyright is not to reward the labor of authors but to promote the progress of science and the useful arts". Copyright encourages others to build freely on the ideas and information conveyed by a work. The dissemination of ideas, which copyright law is intended to encourage, is reflected in the practice of reverse engineering. As the author of the article explains, "reverse engineering involves starting with a finished software program and working backward to analyze how the program operates… the reverse engineer can analyze the structure of the program and put the information to a variety of uses". The article focuses on the making of an intermediate copy of an original software work for the purpose of developing a new software product which does not otherwise infringe copyright in the original work. It points out that intermediate copyists are almost certainly copyright infringers but suggests that some courts have applied an erroneous analysis when assessing whether intermediate copying constitutes infringement. It discusses possible defences available to the intermediate copyist in infringement cases, particularly reliance on the fair use provisions of the Copyright Act, as applied in the case law, and on the contention that the owner of the copyright allegedly infringed is "misusing" his right (a judicial doctrine covering the use of the right "to obtain or coerce an unfair commercial advantage beyond the scope of the right"). However, even if intermediate copyists can escape liability for copyright infringement, "they may have trouble avoiding liability under shrinkwrap licences that prohibit reverse engineering". They may also have trouble under the Digital Millennium Copyright Act in certain cases involving interoperability. [20035]