Competition and innovation facilitated by reverse engineering for interoperability is so central to the software industry that the DMCA codifies it through the section §1201(f) exemption. Yet the value of reverse engineering may lie beyond integrating resulting knowledge into new programs. Some argue, especially FOSS proponents, that “tinkering” increases the technological skill and knowledge of the community. However, it is commonly believed that the DMCA does not accommodate reverse engineering outside of that done solely for interoperability.

Should the DMCA protect secondary reverse engineering goals that may be valuable to innovation and technological knowledge? A recent law school article argues for clarifying interpretation of the DMCA’s reverse engineering exemptions and proposes a "fair access" defense to reverse engineering which would align it, under the DMCA, with traditionally defensible fair use purposes under the Copyright Act. Donna L. Lee, Reverse Engineering of Computer Programs Under the DMCA: Recognizing A "Fair Access" Defense, 10 Marq. Intell. Prop. L. Rev. 537 (Summer 2006).

This is an interesting paper because it shows that ambiguities in the DMCA potentially enable positive policy driven changes to American IP laws. Too often, opposition to IP, which I see as “frantic,” stems from fear over “possible” ways of looking at the law. Even more too often, drastic remedies, such as repealing the DMCA, which would bear more costs and risks than the DMCA itself, are proposed. Lets steady the course, make sure that policy changes are cautious, and they they consider the full range of available options, as this article suggests.

The author points out aspects of the DMCA that require more clarity before we can consider broadening protected fair use. First, the §1201(f) exemption must consider the scope of examination necessary to learn a program- often one has to look at larger parts of a system than those necessary for interoperability to identify them in the first place. Second, the anti-dissemination clause of the DMCA should not cover embedded systems distributed with software, as those systems are necessary for interoperablity. Finally, although infringement can occur during the act of reverse engineering and in the finished product- during the phase of reverse engineering if the purpose is legitimate then acts which would otherwise constitute infringement must be allowed.

Yet, most interesting about the article is its argument for aligning DMCA section §1201(f) with the Copyright Act's fair use contours for a "fair access" right which would protect reverse engineering for legitimate goals (those covered by traditional fair use) other than interoperability.

The article comments that several court decisions have maintained continuity in using legitimate purpose as the prominent legal consideration for reverse engineering under both the Copyright Act and DMCA. First, Sega Enter. Ltd. v. Accolade, Inc., (9th Cir. 1992) established this view under the Copyright Act. Later, with the DMCA, Sony Computer Entertainment, Inc. v. Connectix Corp., (9th Cir. 2000) upheld Sega’s emphasis on the objective in reverse engineering as determinative of its legality, and even warned that a court should not have to “supervise the engineering solutions of software companies in minute detail” even if the methods constitute infringement.

The author generalizes the Sega and Sony courts to suggest that reverse engineering under the DMCA should find protection from underlying policy concerns on legitimate ends; and that these ends, in turn, could be based on defensible purposes in reverse engineering under the Copyright Act's fair use rules. The article further argues Congress intended to codify this policy in DMCA §1201(f) based on discussion of Sega in the legislative record.

The DMCA's legislative history is cited to "fully respect and extend into the digital environment the bedrock principle of 'balance' in American IP law for the benefit of both copyright owners and users.” Commensurate with this policy, the author calls for a broadened fair use defense for reverse engineering under the DMCA, specifically a “fair access” right. Need for this right arises with the discrepancy between reverse engineering under the Copyright Act and DMCA. Its not called a broadened reverse engineering right because the author's proposal actually puts "fair access" outside the scope of the DMCA §1201(f).

… recent court of appeals cases offer … precedent for a fair access defense for reverse engineering. (they) involved defendants who bypassed the digital lock-and-key mechanism in software that the plaintiffs had embedded in consumer goods in order to market competing replacement parts for the goods. .. courts ruled … the DMCA could not be used to prevent a legitimate use of an otherwise accessible copyrighted work. .. the courts did not base their reasoning on the fair use defense, but on a close reading of the anti-circumvention provisions themselves, particularly the words "access," "protection," and "authority" in §1201(a).

…The line of reasoning in these two cases creates precedent for the argument that a person who lawfully obtains a copy of a computer program has the "authority" granted under the Copyright Act's fair use doctrine to "access" or "make use of" the program's code. In theory, this authority places fair-use-defensible reverse engineering outside the definition of circumvention and, hence, outside the reach of the DMCA. That is, the act of reverse engineering, if done for legitimate purposes, is done under the authority of the copyright owner and therefore does not violate § 1201(a)(1)(A).

...whether the reverse engineering in question led to what traditionally would be considered a fair use of the original program--carries the most weight… A second factor to address under the fair access defense is whether an inherent limitation in the market led to the defendant's need to reverse engineer the program. ..A third factor to address under the fair access defense is the nature of the plaintiff's program. This factor overlaps, to an extent, the inquiry under the second fair use factor.

posted by Noel Le @ 8:40 AM | Access: Commons, Fair Use, Orphan Works, Public Domain, DMCA

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