Contract Case Could Hurt Reverse Engineering

An anonymous reader writes "InfoWorld has an article about how a 'U.S. Supreme Court decision could call into question a common practice among software companies: studying competitors' products to improve their own offerings.'"

Comments

Could it be much worse

[Anonymous Coward]

DMCA is already crippling enough.

Re:Could it be much worse

[arivanov]

Bollocks. Nothing to do with DMCA. Note the quote: Meeker noted that Baystate had reproduced a handful of errors in Bowers program. Kann, Baystate's lawyer, said all the errors came from Bowers' user interface, not the underlying code.. This sounds like theft to me. If you rev eng you usually find errors and fix them. If you copy without going through the effort of understanding how things work you get the errors copied as well.

Re:It's about time

[Anonymous Coward]

What about for making things compatible with it, or for research? What if someone slaps a EULA on a virus, and then sues anti-virus researchers?

Sounds like copyright infringement instead...

[benjamindees]

Meeker noted that Baystate had reproduced a handful of errors in Bowers program. Kann, Baystate's lawyer, said all the errors came from Bowers' user interface, not the underlying code.

Re:Sounds like copyright infringement instead...

[cait56]

My initial read is somewhat similiar. A judge has come up with faulty reasoning to support what seems right. But they should come up with the correct rationale. The rationale offered would be chilling.

If customers have the right to examine products, and determine what they like and dislike about each, then it isn't much of a leap to say that producers have the same right to examine their competitor's products.

But there's a line somewhere between studying what some product does, and essentially stealing its research. Whatever the protection mechanism should be, it should stop lazy companies from simply stealing interface designs from other companies rather than paying to develop them on their own.

So it is pretty much copyright infringement, except that some allowance has to be made for the ability of the market to clone interfaces from dominant providers.

Copyright also provides an excellent insight into what contract law must not be allowed to create here. No author is allowed to sell their mystery to the general public except that no other mystery writer may read it for the purpposes of evaluating what was effective or ineffective.

Indeed many writers want to aware of what others have written, so they can ensure that they don't inadvertently write something too similiar to an existing book.

The bottom line is that the term "reverse engineering" should never be applied to observing the external behavior of a product. To me that term implies trying to figure out how the product works, not to trying to figure what the product does.

Slavishly copying what a product does, before the product has an established user base, also strikes me as improper copying. I'll admit I do not know how to define that line. It may be similiar to judgement calls made on when fictional characters have achieved "cultural icon" status.

Re:Sounds like copyright infringement instead...

[wombatmobile]

The bottom line is that the term "reverse engineering" should never be applied to observing the external behavior of a product. To me that term implies trying to figure out how the product works, not to trying to figure what the product does.

Erm... are you sure you can maintain this distinction anywhere outside of your own mental model? How would you go about reverse engineering somebody elses code without "trying to figure out what the product does"?

Re:Sounds like copyright infringement instead...

[cait56]

It isn't easy. But it is a common requirement.

All good models, standards and specifications take great care to avoid specifying how something is to be done, rather than on the externally visible behavior that others rely upon.

The key challenge is to always ask yourself "Could this be done differently without affecting others?". And even more aggressively "How can I redefine this interface so that I no longer care if the other side uses algorithm B, instead of A?"

Re:Sounds like copyright infringement instead...

[SEWilco]

Your confusion is because there are two meanings to "what the product does". The author's meaning is "what the product accomplishes". The confusing meaning is "what the product does in order to produce the intended result".

The author's meaning refers to a specification such as "a conveyance which moves several dozen people between two fixed locations". That says what the product does as a result. The other meaning of "what the product does in order to do that" is avoided in that specification. Using only that "movement" specification, if the conveyance has no windows then one of the people inside might not know if the conveyance does the movement using rails, wings, roads, or rivers, nor whether it is powered by wind, coal, grain [animals], kerosene, or gravity [raft, glider, or roller coaster].

Re:Sounds like copyright infringement instead...

[Anonymous Coward]

Of course if we just shot all of the lawyers all of this would become moot. We have to worry about this shit only because of the threat of litigation.

Errors replicated?

[Ayanami Rei]

That's when I would start to get REALLY worried about "reverse engineering".

So they play with the finished product and copy what they see (roughly) -> fine, as long as you don't violate anything protected by patents. No clause in a EULA could be upheld that would prevent that. It has nothing to do with what can be put in a EULA, but rather, what can be determined as permissible in such an off-hand context.

But to have errors duplicated in the system: I assure you would not be duplicated in a UI unless the coders copied the exact methods behind the UI. Hence they have legitimate claims that there is something fishy going on.

There's matching behavior, and then reimplementing without first understanding. The latter is 1) irresponsible 2) lazy, 3) contemptable, and those that practice should not be protected by reverse-engineering rights. I claim that shouldn't be called reverse-engineering, but something else.

Re:Errors replicated?

[The Vulture]

Not necessarily.

The company that I used to work for was making a router-type product for the cable internet industry. Seeing as Cisco is considered the industry leader, it was highly desirable to copy the Cisco CLI commands, down to the exact command syntax (where possible).

The reverse engineering in my particular case involved typing in commands at the Cisco CLI, and then looking at either the configuration file, or SNMP MIBs to see the results (which is considered reverse engineering, even though I didn't look at any Cisco code).

Now, suppose I put in a very counter-intuitive command, or even a command which was considered to be "in error" (i.e. confusing syntax, whatever). Would you say that something fishy is going on? We're just trying to keep the interface as similar to Cisco as possible.

The article said that the error looked to be in the UI and not in any underlying code. Of course, the question is, were both programs done in the same language, use the same GUI toolkit, etc? Look and feel alone do not constitute full-blown "code-ripping", as we used to call this years ago.

-- Joe

Re:Errors replicated?

[geschild]

"There's matching behavior, and then reimplementing without first understanding. The latter is 1) irresponsible 2) lazy, 3) contemptable, and those that practice should not be protected by reverse-engineering rights. I claim that shouldn't be called reverse-engineering, but something else."

Correct. That term would be "copying" and please let's not get into that area? I've seen enough on copy protection lately... ;-)

Re:Errors replicated?

[stephanruby]

Seeing as Cisco is considered the industry leader, it was highly desirable to copy the Cisco CLI commands, down to the exact command syntax (where possible).

It's a good theory, but it's not applicable to this case. It's obvious from the article that the original programmer of this application wasn't the industry leader. May be there is another perfectly good explanation to copy his errors, but personally I just don't see it.

Re:Errors replicated?

[Natalie's Hot Grits]

have you ever heard of being bug compatible with another program? When you emulate an interface, you need to be not only copying what is considered "properly running interface", but you also must be emulating any errors of the interface. The reason is that you don't know what are errors and what is a desired effect. If you were to release a clone of a program, and you want the interface to be the same, then their interface bugs should show up in your code. If not by accident (not usualy) then intentionally (usually how it happens in a reverse engineering project).

Re:Errors replicated?

[Spoing]

If you want to make something that works just like the original, you copy much of the bad behavior as well as the good. How these defects are implemented, though, is up to the developers though they have to duplicate them. See Wine as an example.

Re:Errors replicated?

[Spoing]

...that said, maybe this case is different. Ignore my comments.

Re:Errors replicated?

[Anonymous Coward]

You mean like this?

Re:Errors replicated?

[Tenebrious1]

Cartographers put fake streets in maps so they can immediately tell if a competitor's map is a copy of their data.

Didn't programmers do this regularly years ago to prevent exactly this sort of thing? "In defendant's program, if you hold shift-alt-xzyacb, it brings up the same exact message as it does in our program, proving they copied the exact source from us, since there's no plausible reason for that to be in the program otherwise" type thing. Do they still do that?

Re:Errors replicated?

[ConceptJunkie]

There's matching behavior, and then reimplementing without first understanding.

And there's the third alternative... compatibility. While it probably doesn't make sense in a GUI, matching bugs in someone else's code can be critical for maintaining compatability.

Do you remember the Borland Turbo Assembler having a switch to mimic MASM's bugs? Do you understand why that might be necessary?

Re:Errors replicated?

[stephanruby]

I understand why someone would want to be bug-compatible with something like Windows. But I don't understand why someone would want to be bug-compatible with a program which seems noone else is using.

It's what the consumers want.

[aerojad]

If consumers go out and buy software to preform a certain sort of task, doesn't everyone involved have the right to make their own product like that to try and compete? Ford gave us the car, but other companies could take a look at it and try to improve upon it. How many resturants and burger joints are their in existance? How many computer operating systems are there? How many web browsers? How many things or places that do or offer the same thing as others, just at a different price, or in a different form, look, shape, etc.

Unless it's so blatant that the company took everything down to the GUI in reverse engineering, it's just trying to better the same service, thus helping out competition, lowering prices, so on, so forth.

Re:It's what the consumers want.

[Twylite]

Consumers also want more Harry Potter, but that doesn't give authors (other than JKR) the right to use the character, setting or plot from the existing novels.

You have to remember that Copyright covers the original work as well as derivatives. In the case of computer software, the concept of a "derivative" has not been tested. There has been no need to do so in the US because of the availability of patents (e.g. Adobe has patented elements of their GUI). Other legal systems may allow patent or design laws to cover this issue.

In this particular case, Copyright isn't the issue being discussed, although it does come into it for other reasons. The seller has elected not to exercise his rights to redistribution (as Copyright owner) unless the buyer enters into a contract. In other words, it is law of contract that is in effect here.

The "legal opinion" stated in the article is, IMHO, fearmongering. Copyright law does not specifically reserve the right of reverse engineering, and there is no reason that such a limitation cannot be added by contract. On the other hand Copyright law does explicitly permit fair use. So to deny fair use in a contract would be at odds with a law, and most legal systems will find the contract or at least that provision invalid.

Back to the issue of derivative works. If the characters and setting of a novel are protected (in and of themselves) by Copyright, does it stand to reason that core elements of software bear the same protection? If not, why not? Any end user will tell you that a usable interfaces makes the difference between bad software and good software, even when the same functionality is present.

To be more precise, Copyright applies to a specific expression of an idea, not to an actual idea. An oft-cited example is "PacMan". Technically, almost every PacMan clone out there is an infringement of Copyright because they employ the same characters and gameplay. The general concept of a character running around eating dots, however, is not subject to Copyright. The test for copyright infringement is subjective and relies on establishing "substantial similarity" between the works.

So let's get down to business. Archive programs are a dime a dozen. They range from completely free to vastly expensive. Most of them have the same functionality: zip, tar, gz support; view, create, test and extract archives; vary the compression levels; etc. Some have minor functionality enhancements such as support for other formats, disk spanning, and the like. The what really sets one program apart from another, what puts WinZip as the market leader despite PKZip's many years of dominance and the dramatically lower price of other alternatives, is the intuitive and friendly user interface (to cluebies, not necessarily to you ;p ).

Copyright is all about protecting a competitive edge, given that time and resources have been invested in creating it. User interfaces certainly sound to me like something that can enjoy Copyright protection.

Re:It's what the consumers want.

[kcbrown]

You have to remember that Copyright covers the original work as well as derivatives.

[...]

Back to the issue of derivative works. If the characters and setting of a novel are protected (in and of themselves) by Copyright ...

If you're right about how "derivative works" is interpreted as regards copyright law, then I have to ask: who the fuck came up with the brilliant notion that characters, settings, etc., which are all ideas and not specific expressions, are protected under copyright law instead of trademark law?

The entire purpose of copyrights, specifically, is to protect specific works from being copied. It doesn't make sense to define "derivative work" in any terms other than as it relates to the specific content being protected. So if I take someone's novel and change the character names but keep the wording identical, I have created a derivative work, as would be the case if I had added something new to the original work and attempted to distribute the new whole work (as opposed to just the additions).

But to call something a "derivative work" simply because it makes use of some of the characters and ideas within someone else's work is sheer lunacy.

Put another way: I should be able to write a brand spanking new novel set in the Star Wars universe and involving some of the characters within it, without that novel being declared a "derivative work" and thus a violation of copyright. Why? Because I didn't copy anything except ideas.

If someone wants to protect a name, they can get a trademark. If they want to protect an idea, they can get a patent. And if they want to prevent people from making unauthorized copies of their works, then and only then should they be allowed to use copyright.

Re:It's what the consumers want.

[aerojad]

Copyright is all about protecting a competitive edge, given that time and resources have been invested in creating it. User interfaces certainly sound to me like something that can enjoy Copyright protection.

But where does it end? Where is the line? I'm going to bite the big one for this but how much is KDE starting to look like windows? If GUIs can enjoy protection, and what's to stop Microsoft from patenting a GUI in which the main menu can be accessed with a button containing the company's logo in the bottom left corner of the screen by default, and using icons to represent running programs along with a clock in the bottom right? I believe that yes, you can't copy a GUI bit for bit, but there has got to be some leeway allowed.

Right now as I sit here with Opera7 and IE6 opened, I notice that each has the sequence of buttons: back, forward, refresh, home in the same order. Is that a potential breech of copyright, though the buttons look nothing like each other? I'm saying that GUIs that let the user perform the same task should be protected from being exact replicas, but not protected to the point where having too many overlapping features will cause suspicion.

Re:It's what the consumers want.

[Twylite]

But to call something a "derivative work" simply because it makes use of some of the characters and ideas within someone else's work is sheer lunacy.

Put another way: I should be able to write a brand spanking new novel set in the Star Wars universe and involving some of the characters within it, without that novel being declared a "derivative work" and thus a violation of copyright. Why? Because I didn't copy anything except ideas.

Really? So you should be able to write a Harry Potter novel, using in your favour the huge success of JK Rowling's work to boost the acceptability and profit potential of your derivative? Do you really think JKR should have to suffer a loss of sales when someone reads your miserable derivative and decides that they don't really like Harry Potter?

So let's start with this: you have a completely wrong notion of what Copyright is intended to protect. Is is specifically intended to protect ideas, not a particular physical object in which they are captured. It is specifically intended to prevent anyone from copying your ideas so closely that they are confusingly similar to or even indistinguishable from the original work. It is specifically intended to protect the intellectual creations of a person from use (without permission) by any third party.

A character and a setting are VERY specific intellectual property or expressions. Although the fantasy and science fiction genres are HUGE, nearly every renowned work has immediately recognisable and distinguishable characters and settings. Middle Earth, Dune, Narnia, the Nautilus, Jedi, Discworld, Gandalf, Vimes, Paul Atreides - what makes you think that you can merely take the VAST amount of "development time" these authors spent on their creations and use it in a novel of your own?

You can prattle on about "should" and "shouldn't" all you like, but this IS the state of Copyright, this IS how it works, and in my not particularly humble opinion you are not only WRONG but a leech that doesn't understand the true source of value or just wants to sit on your arse and have society give you everything you deserve for being such a magnificent gift to this planet.

Re:It's what the consumers want.

[Twylite]

But where does it end? Where is the line?

That's for the courts to answer. They will consider a range of issues including prior art (yes, even for Copyright) and substantial similarity. There are many more issues than Copyright to consider though.

what's to stop Microsoft from patenting a GUI in which the main menu can be accessed with a button containing the company's logo...

Not much. Patents are different to Copyright. Can MS patent this? Maybe, I don't know. Adobe got patents on their GUI elements, but they could have (at some point) been considered innovative. Then again, so could the taskbar.

I believe that yes, you can't copy a GUI bit for bit, but there has got to be some leeway allowed.

Certainly. In the end it comes down to cold cash. If you can't prove damage, you don't have a basis for delict, and you can't hold someone liable for patent, design or copyright infringement, or unfair competition.

So you have to ask yourself: is your interface using elements of another interface, either by intentionally copying the look and feel, or just because "it was a good idea"? Are those elements a novel or distinguishing feature, or are they recognised as standard practice in a UI? As a result of using these elements are you enriching yourself, and/or causing damage to the owner of the copyright in the other product? If "and" in the previous question, this may be unjust enrichment; otherwise it may be delictual liability. Is there copyright over the "original" work? Is there a patent or design reservation covering the elements in question? Are your products in competition (it is difficult to establish damage if they aren't)? And specifically, did you use the elements in order to gain a competitive edge, remove a competitive edge that the original product had over your's, or to make your product confusingly similar to the competition (all of which could be unfair competitive practice).

In short, there are numerous issues to be considered; Copyright is just one, and potentially the least powerful. Copyright covers the specific expression of an idea, and its derivatives. This is generally easy to determine with literary works, but very difficult with software, especially user interfaces. I would think that the notion of novelty will be considered: a thousand UIs designed in accordance with a HCI 101 textbook won't infringe on each other, because there is nothing to distinguish them from the general concept. A brand new UI idiom (if I could think of one I wouldn't tell you ;p ) may, on the other hand, be worthy of copyright on its own.

Right now as I sit here with Opera7 and IE6 opened, I notice that each has the sequence of buttons: back, forward, refresh, home in the same order. Is that a potential breech of copyright, though the buttons look nothing like each other?

I am not a judge, but I would take into account factors like being able to redefine the toolbar(s), allowing you to present the buttons in whatever order is appropriate. The HTTP and HTML specifications in themselves and when read with commentary on their creation imply certain functionality, such as access to your hypertext traversal history (back, forward, history), and the need for caching and a mechanism to bypass caching (refresh). Also one would need to consider that a web browser's primary functionality is to display web pages, and there are recognised idioms for giving access to supporting functionality (menus and toolbars, and a status bar).

Re:It's what the consumers want.

[kcbrown]

Really? So you should be able to write a Harry Potter novel, using in your favour the huge success of JK Rowling's work to boost the acceptability and profit potential of your derivative?

Do you think JK Rowling should be able to write a Harry Potter novel, using in her favor the huge success of all the stories that came before that talk about magic, witchcraft, good, evil, etc., to boost the acceptability and profit potential of her derivative? Well?

Do you really think JKR should have to suffer a loss of sales when someone reads your miserable derivative and decides that they don't really like Harry Potter?

If JK Rowling is concerned about that possibility, then she has a means of dealing with it: it's called a trademark.

That is what we're really talking about here: a name that confers meaning and expectation.

Use the right tool for the job.

You can prattle on about "should" and "shouldn't" all you like, but this IS the state of Copyright, this IS how it works, and in my not particularly humble opinion you are not only WRONG but a leech that doesn't understand the true source of value or just wants to sit on your arse and have society give you everything you deserve for being such a magnificent gift to this planet.

Keep the name calling to yourself, please.

And remember the entire reason for copyright in the U.S.: "to promote progress in the sciences and useful arts". Not to make the originators of the works a boatload of money. Not to confer status. To make the world a better place.

Now, interpreting copyright the way it apparently has been may accomplish that, but I doubt it, considering all of the good stories (as an example) that certainly haven't been published because of this particular interpretation of copyright.

And as to the characters, settings, etc. all being so incredibly important that they deserve special protection, remember this: almost everything is built upon that which has come before. If you're going to confer special protection upon something then there has to be a special reason for doing so. Because otherwise, you had better be prepared to do the same for things like the concept of spacecraft, warp drive, hyperspace, etc., etc. -- the very things that are the foundation of most modern science fiction.

So you may continue to believe that the things protected by copyright truly deserve to be, but you might want to give the overall implications of that protection a little more thought before declaring it good and just.

Re:It's what the consumers want.

[nathanh]

Really? So you should be able to write a Harry Potter novel, using in your favour the huge success of JK Rowling's work to boost the acceptability and profit potential of your derivative?

I don't see why not. But whether it's legal or not has nothing to do with "should".

A character and a setting are VERY specific intellectual property or expressions. Although the fantasy and science fiction genres are HUGE, nearly every renowned work has immediately recognisable and distinguishable characters and settings. Middle Earth, Dune, Narnia, the Nautilus, Jedi, Discworld, Gandalf, Vimes, Paul Atreides - what makes you think that you can merely take the VAST amount of "development time" these authors spent on their creations and use it in a novel of your own?

I daresay this is a gray area and it takes a judge to know when the line has been crossed.

You can prattle on about "should" and "shouldn't" all you like, but this IS the state of Copyright, this IS how it works, and in my not particularly humble opinion you are not only WRONG but a leech that doesn't understand the true source of value or just wants to sit on your arse and have society give you everything you deserve for being such a magnificent gift to this planet.

Wow, you certainly have the sharp tongue.

Need I point out your own use of the word "should".

Re:It's what the consumers want.

[Natalie's Hot Grits]

"A character and a setting are VERY specific intellectual property or expressions. Although the fantasy and science fiction genres are HUGE, nearly every renowned work has immediately recognisable and distinguishable characters and settings. Middle Earth, Dune, Narnia, the Nautilus, Jedi, Discworld, Gandalf, Vimes, Paul Atreides - what makes you think that you can merely take the VAST amount of "development time" these authors spent on their creations and use it in a novel of your own?"

Well, If I did, I wouldn't be violating copyright. As your parent posted before you, that is a violation of TRADEMARK law, not COPYRIGHT law. You are the confused one. If I write a book with origional characters in it, and don't trademark the title of my book, the setting of my book, or the characters of my book, then I will have no right to sue anybody who uses those things in their own books. copyright only covers the specific work, not notions covered in the work.

calm down before you have a stroke. sheesh.

Re:It's what the consumers want.

[Twylite]

Do you think JK Rowling should be able to write a Harry Potter novel, using in her favor the huge success of all the stories that came before that talk about magic, witchcraft, good, evil, etc., to boost the acceptability and profit potential of her derivative? Well?

"Specific expressions of ideas". Get it? Magic, witchcraft, good and evil are concepts. A boy wizard with a lightning scar on his forehead who attends a school hidden in modern-day England where it can't be seen by muggles is not a general concept. This are very specific expressions of general concepts.

If JK Rowling is concerned about that possibility, then she has a means of dealing with it: it's called a trademark.

Wrong. A trademark could protect the name "Harry Potter" for use in a particular context for the purposes of carry out trade. A trademark does NOT protect her against another author writing a story about a boy wizard with a lightning scar on his forehead who attends a school hidden in modern-day England where it can't be seen by muggles, called John Miles. And unless she trademarks every character and place name in her books, it doesn't stop another author from writing a story about Sirius Black and his escapades at Hogwarts.

Use the right tool for the job.

Copyright is the right tool. You just don't understand it.

And remember the entire reason for copyright in the U.S.: "to promote progress in the sciences and useful arts". Not to make the originators of the works a boatload of money. Not to confer status. To make the world a better place.

Economics 101: We (as in the "Western world") live in a market economy. The premise of this system is that society has at its disposal resources, and each individual must use the resources at his/her disposal to obtain more resources in order to survive, and possibly to prosper. This usually entails exchanging labour for cash, and cash for food, clothing, housing, etc.

The profit motive is thus core to the functioning of a market economy, and a free democratic society. Like it or not. Every government intervention in a market economy is socialistic, intended to restrict the otherwise free ability to trade and profit for some (usually good) reason. For example, unjust enrichment (profit at the expense of another) is outlawed, unfair competition (which has no meaning in a true free market) is defined, consumers are protected by standards of products and behaviour, and so on.

The aim of copyright is to promote progress in sciences and arts. The mechanism through which most countries have elected to achieve this is economic: a protected monolopy over a work, so that a potential creator is given an economic incentive of being able to be the exclusive benefactor of that work for a period of time. In this way there is an incentive to create works that will, eventually, fall into the public domain.

Now, interpreting copyright the way it apparently has been may accomplish that, but I doubt it, considering all of the good stories (as an example) that certainly haven't been published because of this particular interpretation of copyright.

As it happens, I am strongly in favour of reduced copyright durations, especially for derivative works, for precisely the reasons you have voiced, but in conjunction with my knowledge and understanding of why you CAN'T make derivatives as you would like to.

But, as with everything, there needs to be balance. If derivatives were freely allowed, the new Harry Potter book would almost certainly not be going to China, as the Harry Potter works received a VERY bad name there after a very poor (and sordid) derivative was illegally published. That could deprive not only JKR of income, but Chinese people of very good literature.

At the other end of the spectrum, I am frustrated at the lack of ava

Re:It's what the consumers want.

[pommiekiwifruit]

How many resturants and burger joints are their in existance?

Just one, Taco Bell. Or have I got ahead of myself with the franchise wars?

Re:It's what the consumers want.

[aerojad]

Taco Hut and Pizza Bell... *nods*

Re:It's what the consumers want.

[Twylite]

I'll begin with the obligatory IANAL ... but I am studying Copyright law, amongst others. In the US, UK, Australia and South Africa, you are, quite simply, wrong.

This site covers the question of fan fiction and what constitutes a derived work, and in other places on the web you will find lovely articles on Fan Fiction and the Copyright Dilemma.

But don't take my word for it. Try this homework assignment: write a story about a boy who was bitten by a mutant spider and gained superpowers (call him "SpiderBoy", since "SpiderMan" would violate an existing TRADEMARK) and describe his exploits in his red and blue web-printed bodysuit. Advance warning: you may receive a letter something like this (pay special attention to the Q/A "What are the major elements of FanFic")

Once you're finished, you may want to visit your doctor and get your colon disconnected from the back of your throat.

Re:It's what the consumers want.

[Anonymous Coward]

When you change names, it is OK. See for example "Superman" vs. "Smallville".

Re:It's what the consumers want.

[Twylite]

http://superman.ws/fos/copyright/comicon1.php

Re:It's what the consumers want.

[mpe]

If you're right about how "derivative works" is interpreted as regards copyright law, then I have to ask: who the fuck came up with the brilliant notion that characters, settings, etc., which are all ideas and not specific expressions, are protected under copyright law instead of trademark law?

In some cases people do attempt to apply trademarks to fictional characters. The most extreme case being Paramont which at one time appeared to be attempting to trademark any proper noun associated with Star Trek(tm).

Put another way: I should be able to write a brand spanking new novel set in the Star Wars universe and involving some of the characters within it, without that novel being declared a "derivative work" and thus a violation of copyright. Why? Because I didn't copy anything except ideas.

You could still get in trouble just for using the same "universe" even if all your characters were original. The only exception would be if your work was some kind of parody of the original.
There are two things which have come together to create problems, one is copyrights which last longer than human lifetimes. The other is the ability for information to be sent anywhere at a trivial cost. (Even something like a book can be shipped anywhere on the planet within a day at a price affordable to hundreds of millions of people.) The likes of "fanfiction" simply could not exist in a world where the fastest way to diseminate information is the speed of a horse.

Re:It's what the consumers want.

[OeLeWaPpErKe]

Characters and settings are not to be copied ? I'm glad you picked harry potter.

I suggest you search and read a translation of "Griezelstate" by Anthony Horowitz (it's in dutch, but it's been translated).

The character harry potter (evil adopted parents, letters magically appearing to send him to magic school) is sure as hell copied from that book, and the setting too (griezelstate is an island with dangerous woods, there is a version of dyadine alley, the tree on the premises attacks them, the point system, the "mortal enemy" not being the culprit, but one of the teachers that was not suspected at all, ...).

Read the book, and you'll conclude that just about every element in the books is in the first or second harry potter book.

So I suppose that "getting inspiration from a book" also goes pretty far.

Re:It's what the consumers want.

[JonnyCalcutta]

A trademark does NOT protect her against another author writing a story about a boy wizard with a lightning scar on his forehead who attends a school hidden in modern-day England where it can't be seen by muggles, called John Miles.

Eh, neither does copyright law protect her from this. I could write as many books as I wanted containing such a character, called John Miles, who attended a boarding school for magicians.
That would be my interpretation of such a character and so long as he wasn't called Harry Potter and his school wasn't called Hogwarts, I would be free from copyright infringments (which is not to say the same as free from litigation by those who like to throw their large legal funds around in the hope of forcing victory or legal reinterpration).

Re:It's what the consumers want.

[mpe]

So you should be able to write a Harry Potter novel, using in your favour the huge success of JK Rowling's work to boost the acceptability and profit potential of your derivative?

You realise that she originally wrote for her own pleasure. She didn't seek to be rich or to compete with Madonna for the title of "world's most famous woman".

So let's start with this: you have a completely wrong notion of what Copyright is intended to protect. Is is specifically intended to protect ideas, not a particular physical object in which they are captured. It is specifically intended to prevent anyone from copying your ideas so closely that they are confusingly similar to or even indistinguishable from the original work. It is specifically intended to protect the intellectual creations of a person from use (without permission) by any third party.

Actually copyright started out as a way for the state to control the then new invention of the printing press. Which as a side effect made the first publishers very rich. It was a later revision of the idea which assigned copyright to authors, for the past few hundred years publishes have been trying to get control of copyright back. Which they have managed better with music and video recordings than with books.
Into the mix which is modern copyright law you also have added the idea that copyrights should somehow act as a combination of pension and life insurance. The concept of an author's "moral rights" which can mean anything from a work being the author's "baby" to their always being credited. The idea from the US Constitution that copyright is there to further the progress of "Science and the useful arts". Probably a few other bits and bobs. As a result of various treaties, the WIPO and attempts at "harmonisation" most copyright statutes are Chimira like.

A character and a setting are VERY specific intellectual property or expressions. Although the fantasy and science fiction genres are HUGE, nearly every renowned work has immediately recognisable and distinguishable characters and settings. Middle Earth, Dune, Narnia, the Nautilus, Jedi, Discworld, Gandalf, Vimes, Paul Atreides - what makes you think that you can merely take the VAST amount of "development time" these authors spent on their creations and use it in a novel of your own?

None of the authors involved here invented their universe from scratch (nor did Rowling for that matter)...

Re:It's what the consumers want.

[Twylite]

Very interesting. Sadly I can find no information on a translation of Griezelstate, and Google can only pinpoint four pages containing any information on similarities between the novels / series.

If these works are as similiar as you say they are, then maybe there has been an infringement of copyright. Or maybe not. The idea of evil adoptive parents is standard in children's literature. There are numerous books dealing with child magicians (A Wizard of Earthsea, Magician), dangerous woods are part of most folklore (and probably predate Tolkien in fiction), as misdirection is a common element of mystery stories.

So has JKR created a new work, or merely retold the story as presented in Griezelstate? Did she use the characters, setting or plot, by any other name or slight modification, where such elements are not common in their genre? If so, then I can only wonder that there has not already been a question raised over the copyright issue.

As fan fiction sites will tell you: fan fiction is necessarily a derivative work. Whether it is an infringing derivative work depends on its closeness to the original. Using any of the core characters or elements of the setting that make the original distinctive are likely to be infringing. Extending the setting or exploring a character largely ignored by the author (and hence not central to the author's story) is likely to be non-infringing.

Taking a single, recognisable character and putting him/her into a completely different story, even with a different name, is also likely to be infringing. But taking a character concept (a child wizard who goes away to learn at a magical school) and developing it into a distinct character with a unique identity/personality, and in a (sufficiently) different environment, would likely not be infringing.

Re:It's what the consumers want.

[Twylite]

Please read my reply in context. You are correct for the most past: any author could write such a book without infringing copyright. Providing the characters and/or the setting were not substantially similar to those of Rowling's works.

So writing a book containing a description that is in all but name Harry Potter would almost certainly be infringing; the same goes for a setting that is Hogwarts in all but name(s).

However, if you took the concept of a boy wizard (most likely without a special scar caused by a mortal enemy) going to a magical school, and developed your own descriptions and story that didn't mimic those of Hogwarts and the events encountered by Harry, then you have no problem.

As seen from fan fiction, there is a broad grey area. It seems more acceptable to reuse setting than to reuse characters, for example, a lot of fan fiction in the Star Wars universe reuses elements of the setting but revolves around characters that weren't in the movies or had insignificant parts. In a similar way, I doubt that a book focusing on one of the other schools of wizardry that JKR mentions in passing would be an infringing work, despite it being able to draw substantially on the "mythology" (for lack of a better word) that she has created.

Re:It's what the consumers want.

[Anonymous Coward]

>> Copyright is all about protecting a competitive edge, given that time and resources have been invested in creating it. User interfaces certainly sound to me like something that can enjoy Copyright protection.

No, copyright protection is intended to protect a creative implementation. Copyright law specifically does not protect functional elements of a work. A novel's plot and characters are generally protected, since they are creative choices - you could reuse the characters in a work of historical fiction since history has already determined the names and places of events. A computer game tends to have greater creative protection, since a game is, generally, nonfunctional. A CAD program, on the other hand, is primarily functional. A particular GUI may be better or worse, based on objective criteria such as how long it takes to learn, or how quickly an experienced user can make a new drawing. There already is case law describing the extent of copyright protection for user interfaces - one case involved copying and simulating the Lotus 1-2-3 menu system; another involved the layout of buttons on a VCR.

This case really seems to be more of a (worrisome) precedent in that it validated a significant term in most EULAs. Since just about every EULA on the planet includes a prohibition on reverse engineering, it could be generalized to imply that once you have used some type of program (a spreadsheet, a database, etc) you are permanently blocked from ever writing a competing product because you might use some ideas you gathered from using that program.

Re:It's what the consumers want.

[mpe]

Do you think JK Rowling should be able to write a Harry Potter novel, using in her favor the huge success of all the stories that came before that talk about magic, witchcraft, good, evil, etc., to boost the acceptability and profit potential of her derivative?

The etc includes characters like "The reluctant hero", "The genius", "The member of a big family who feels overshadowed by siblings", "The elder", "The prankster", "The black sheep", "The fool who seeks status", "The bigot", "The victim of bigotry", "The power seeker" and so on.

And remember the entire reason for copyright in the U.S.: "to promote progress in the sciences and useful arts".

Note also that the US Constitution simply allows copyright, it does not mandate it.

Not to make the originators of the works a boatload of money. Not to confer status.

Ironically Ms Rowling appears to have an attitude to fame and status not unlike that of her character.

Re:It's what the consumers want.

[Twylite]

Pah! The most intelligent response I've had so far, and you post as AC. Weenie ;p

No, copyright protection is intended to protect a creative implementation. Copyright law specifically does not protect functional elements of a work.

I agree. But I'm not sure of the courts' interpretation of whether a particular GUI element is functional or creative. The case law you refer to sounds is very interesting, I will go an read up on it.

One of the complications here is that the US patent system allows for patenting of GUI element (e.g. Adobe's tabbed tool trays), while in other systems this is a grey area that is generally assumed (to some extent) to fall under Copyright law. As I said in another post, there has to be damage in order to sue for (Copyright) infringement, and generally damage (for copying GUI elements) will only occur when the copier is creating a competing product, in which event the case law you cite will probably have effect.

it could be generalized to imply that once you have used some type of program (a spreadsheet, a database, etc) you are permanently blocked from ever writing a competing product because you might use some ideas you gathered from using that program.

It could, but this is unlikely. Take for example restraints of trade: even if you are restrained from using any knowledge you gained during the course of an employment, you are not restrained from using general knowledge applicable in your field of expertise.

In software there is a body of knowledge that encompasses a suitable approach to solving a problem; and that body of knowledge includes standard practices for GUI design.

I think in this case (as in so many others) the devil is in the details.

Re:It's what the consumers want.

[usotsuki]

I take it you have never heard of fanfics. :)

-uso.

Re:It's what the consumers want.

[usotsuki]

Superman is owned by DC Comics, which is a sister company to Warner Bros., i.e., they are really the same company. So WB can do whatever they want with Superman, and it won't be infringement - it's their character.

-uso.

Re:It's what the consumers want.

[Twylite]

I take it you haven't read this comment. :)

Re:It's what the consumers want.

[mdwh2]

So you should be able to write a Harry Potter novel, using in your favour the huge success of JK Rowling's work to boost the acceptability and profit potential of your derivative? Do you really think JKR should have to suffer a loss of sales when someone reads your miserable derivative and decides that they don't really like Harry Potter?

But if we're talking about a book that doesn't use any of the same names, and is just with similar settings, characters and storylines, then I don't see how such a book would be able to ride off the success of Harry Potter. People would have to read the book to find that out. People who read the book and decided it was poor wouldn't think that another, different book would be poor, unless it said it was a Harry Potter book.

Re:It's what the consumers want.

[Twylite]

Quite easily: "John Mills goes to Hogwarts", or "John Mills goes to Wizard School" and a critic in a newspaper (e-zine, the front cover, whatever) mentions its similarity to Harry Potter.

The more you change, the less of a problem you have. Writing a book about another child attending Hogwarts and including all the "supporting cast and crew" (excluding Potter and closest friends) would be a problem. Creating your own wizarding school with its own traditions and traits is more than likely creating a new story in the same genre.

Re:It's what the consumers want.

[bezuwork's friend]

you have a completely wrong notion of what Copyright is intended to protect. Is is specifically intended to protect ideas, not a particular physical object in which they are captured. It is specifically intended to prevent anyone from copying your ideas so closely that they are confusingly similar to or even indistinguishable from the original work.

I think you are quite wrong about this. Copyright purports to protect the expression, not the underlying idea. Perhaps I am misreading your post, for in your earlier post you said "Copyright applies to a specific expression of an idea, not to an actual idea" which is correct by my understanding. For example, Picasso can copyright a specific painting of three women in cubist form, but he cannot copyright the idea of painting three women in cubist form. Thus, while Picasso can sue anyone painting three women in cubist form, the court would need to consider access and substantial similarity in order to determine whether illegal copying of Picasso's painting occurred.

Re:It's what the consumers want.

[Tackhead]

> > Do you think JK Rowling should be able to write a Harry Potter novel, using in her favor the huge success of all the stories that came before that talk about magic, witchcraft, good, evil, etc., to boost the acceptability and profit potential of her derivative?
>
> The etc includes characters like "The reluctant hero", "The genius", "The member of a big family who feels overshadowed by siblings", "The elder", "The prankster", "The black sheep", "The fool who seeks status", "The bigot", "The victim of bigotry", "The power seeker" and so on.

Ahem: You've both forgotten something something:

"A method for entertaining consumers by means of a sequence of character strings, any of which, when taken in whole or part, describe reluctant heroes, geniuses, members of large families who feel overshaodwed by siblings, elders, pranksters, African-American sheep, Darl McBride, Sen. Robert Byrd, Sen. Trent Lott, and Sen. Hilary Clinton.

Reg. U.S. Pat. Off: 4,294,967,297."

BOTH of you owe Jeff Bezos a quadrillion dollars.

Re:It's what the consumers want.

[Twylite]

Copyright protects idea and expression, but its protection of idea is very limited. The expression of the idea changes in a translation, or in an adaption to screen or to theatre, but all of these are derivations protected by copyright, because they express the same idea.

When looking at an idea in terms of copyright, you have to be very specific. A "space ship" is not an idea, it is a well known concept. A space ship named "Enterprise NCC 1701-D" with a particular look and means of functioning, a purpose and a recognisable crew, on the other hand, is an idea that is covered by Copyright.

It is true that over time ideas can become well known concepts, and lose their novelty and uniqueness that make the valuable to a copyright holder. This is a development of genre, and the first contribution of a work to the public domain.

When I said that copyright is specifically intended to protect ideas, I meant just that. It does not just protect a single printed book, or even all impressions of that book. It also protects translations, adaptions, grammatical corrections, and future works that, by virtue of their content, could be considered an extention to (and hence derivation of) the work.

In the end it comes down to a court deciding whether one work is substantively similar to another, as you say.

Re:It's what the consumers want.

[Anonymous Coward]

While your thoughts have merit, they haven't been thoroughly researched and you don't understand software.

Example:
Lets take the text entry box. If software and a UI were a story, the text entry box would be in the cast of characters. So would the file menu, and the help screen.

The email entry textbox is a little like harry potter, because now our textbox (the hero) has a name and a specific role in the story.

You can't say that because excel has a text entry box, and it is sometimes called email, that microsoft has copyrights to it. Without the text entry box called email, there can be no web forms, database applications or any other program where you enter text as input, and the text is in the form of an email address.

I think you take an overly simplistic view of software....

>>Any end user will tell you that a usable interfaces makes the difference between bad software and good software, even when the same functionality is present.

Any reader will tell you that the paper in a book makes the difference between a book you keep and a book you throw away, even when the same story is present.

Who owns the patent to high quality printing paper and good binding?

You might say "prior art". Same goes for elements of software in most cases. Patenting every tiny aspect of every possible software technique and over reaching copyright legislation will only have the effect of creating mega-monopolies which cannot be broken.

Wanna pay $3000 for your next operating system? Go ahead and let microsoft copyright "the kernel" as anything that talks to hardware in a computer, and patent the operating system.

Software patents are a very bad idea. Not letting your elected officials know your feelings on software patents is a worse idea.

l8,
AC

Re:It's what the consumers want.

[mdwh2]

Quite easily: "John Mills goes to Hogwarts", or "John Mills goes to Wizard School" and a critic in a newspaper (e-zine, the front cover, whatever) mentions its similarity to Harry Potter.

But a reviewer could do this even in cases where there were enough differences that it shouldn't be considered copyright infringement. It's fairly common for reviewers to mention similarities or references to other books.

For someone reading the review, there's a difference between "This is rather similar to Harry Potter", and "This is the new Harry Potter book".

Re:It's what the consumers want.

[Twylite]

Hmmm. AC indeed.

Lets take the text entry box. If software and a UI were a story, the text entry box would be in the cast of characters. So would the file menu, and the help screen.

Sorry, but I don't accept the proposal on which you've based the rest of your argument. A text entry box would not constitute a character in a story. Excluding the most trivial of programs, you can't interact meaningfully with a text entry box on its own, nor can it interact with the setting (the program's functionality) meaningfully on its own.

If you likened the UI as a whole to a character, I would be more inclined to to consider any following argument as potentially valid. A UI as a whole can be described as "having character", and can be seen as a character. A UI can have a personality, can interact meaningfully with a user and the setting, and can be recognisable and distinguishable from other UIs on the basis of its many traits.

A single GUI widget, by comparison, is merely a character trait. Each widget/trait has some variance, but handler enough in an of itself to be considered significant. It is many traits together that make a character.

I think you take an overly simplistic view of software....

And I think you read too much pulp fiction if you think a textbox could be a character.

Any reader will tell you that the paper in a book makes the difference between a book you keep and a book you throw away, even when the same story is present.

Sorry ... hard cover pulp fiction on acid free paper.

I don't know about you, but I've never seem myself nor any of my friends throw away a book because of the paper its printed on. A collector may insist on a quality medium in order to preserve the work for as long as possible, or attain the best use (say, CD versus tape for music), but this is hardly comparable to a good versus a bad UI.

Patenting every tiny aspect of every possible software technique and over reaching copyright legislation will only have the effect of creating mega-monopolies which cannot be broken.

Amazing what you can put into peoples' mouths. I am most assuredly not pro software patents.

As I have said in my (many) comments on this thread, there are numerous elements of software design and implementation that are well known and hence not subject to copyright or patent law (or at least shouldn't be). There are very few elements that are, of themselves, novel (I don't think Adobe's tabbed toolbars are particularly novel), and this is a core reason for my disagreeing with the concept of software patents.

But a GUI as a whole is not, in most applications, merely a sum of its parts. It requires a major investment in time, resources and testing to discover a presentation format that is functional and aesthetically pleasing, a series of interactions that is intuitive and simple, yet flexible enough for comprehensive coverage of the available functionality and accessible enough for novices and advanced users alike.

Corporations like Apple, Microsoft and Adobe pour millions into UI design R&D, and they have a legitimate expectation that this investment, like their software offerings as whole, are afforded some degree of protection -- not over the elements that make up their UI, but over the UI as a cohesive whole.

He stole my GUI!

[Kenard]

This is about one company looking at anothers user interface of a CAD program and making improvements to thier own software. Oh, and the EULA said something about don't reverse enginering this.

Isn't this more of a issue of Look and Feel?


I also like how they say the GUI is a trade secret.

Re:He stole my GUI!

[bad_fx]

This is about one company looking at anothers user interface of a CAD program and making improvements to thier own software. Oh, and the EULA said something about don't reverse enginering this.

WHEW! Thank god you're around to summarise the whole article so succinctly. For a minute I thought I might actually have to RTFA. But who needs that with such a painstaking, well thought out, expert dissection available right here!? :P

Re:He stole my GUI!

[Crazy Viking]

Trade secret?

Well that is their problem isn't it. A trade secret is just that. It is not protected by any legislation except copyright, so you are free to imitate it as much as you like. A trade secret discovered is no secret anymore and has lost its protection.

If you want protection from other people doing something which is "like" what you have done then you need to obtain a patent. Then of course it would be no secret any more, but you have traded protection by secrecy for legal protection. That is how the world moves forward.

Re:He stole my GUI!

[Darth_Burrito]

I think the article said somewhere that the GUI Template (whatever that means) was patented and that part of the verdict against Baysoft was in fact patent infringement.

Re:He stole my GUI!

[Nick of NSTime]

It was for a CAD tool template, which organized CAD commands in a logical manner.

Re:He stole my GUI!

[blueskies]

which organized CAD commands in a logical manner.

Hmmm. If it is that logical, should it really be patented? I guess an idea can be logical and novel.

Re:He stole my GUI!

[Nick of NSTime]

I don't know; I'm not a patent lawyer. I will say, though, that plenty of the patents I've looked at have been very illogical.

Perhaps the inventor of the CAD template used the word "logical" to denote a sense of consistency or usefulness, rather than the literal meaning of "logical;" that is, formally true or valid.

This reminds me of something my philosophy prof said in college: "Logic is local." His accent made it sound like, "Logic is loco," but I know what he meant. ;)

Re:It's about time

[TallEmu]

I'm all in favour of that!

Before running this VIRUS you must accept the terms of our End User Licence agreement.

[Accept] [Decline]

Re:It's about time

[Anonymous Coward]

worthless

Re:It's about time

[Max Romantschuk]

Reverse engineering is nothing more than the common theft of intelectual property. When yo look at someone's compiled code, you are seeing that which you were not meant to see.

From what I could understand from the article this was not a case of code decompilation, but rather looking at the program and seeing how it works, then reimplementing the features.

Idea theft maybe, but reverse engineering?

Re:It's about time

[l0ungeb0y]

What if someone slaps a EULA on a virus, and then sues anti-virus researchers?

Well, so far M$'s legal department has the first half covered. Rumour has it that they are backing SCO in attempt at the other half.

Ridiculous...

[tinrobot]

At the rate we're going, Ford won't be allowed to take apart Chevys to see how they work... McDonald's employees will be jailed when they eat at Burger King... and software engineers who look at competitor's interfaces will be blinded with hot irons.

Re:Ridiculous...

[rjamestaylor]

• and software engineers who look at competitor's interfaces will be blinded with hot irons.

We must plug the analog holes!

Re:Ridiculous...

[InsaneCreator]

software engineers who look at competitor's interfaces will be blinded with hot irons.

Look on the bright side - you'll have an excellent chance to improve your touch typing capabilities! ;)

Re:Ridiculous...

[GrouchoMarx]

At the rate we're going, Ford won't be allowed to take apart Chevys to see how they work... McDonald's employees will be jailed when they eat at Burger King... and software engineers who look at competitor's interfaces will be blinded with hot irons.

OK, who the heck modded this Funny? There's nothing funny about the world that we're building for ourselves, where the very act of thought becomes illegal because it's based on some other thought. I want a +1 Scary, or +1 Orwellian-But-True. That would be more accurate than +1 Funny.

Re:Ridiculous...

[mlock]

But to be honest ... If it's not a simple "look and feel similar" thingy but more a "use the resource editor and deassembler to cut out the pieces we want" ... then Ford has to raid some buildings to achieve a similar effect. To get a neat UI to the user is ok - to just rip out code not. Think about the storms raising every not and then "xyz - GPL violation"!!

Re:Ridiculous...

[Anonymous Coward]

I tried the new KDE and felt as though blinded with hot irons.. that Red Hat 9 sure stinks.

Re:Ridiculous...

[mpe]

At the rate we're going, Ford won't be allowed to take apart Chevys to see how they work... McDonald's employees will be jailed when they eat at Burger King... and software engineers who look at competitor's interfaces will be blinded with hot irons.

Not exactly funny since there actually is a case of a Coke delivery driver being sacked after being caught drinking a Pepsi. (Or possibly vice versa.)

Re:Ridiculous...

[silas_moeckel]

Was that on the job? Drinking the competors brand while being a delivery agent and thus very much a public figure for the company is just bad form.

On there own time well I hope they sued and won for wrongfull termination.

Re:Ridiculous...

[joealba]

When deciding where their next store location should be, McDonalds spends all kinds of money on market research. Then as soon as they settle on a new location, Burger King just plops one next door.

Is that illegal? Nope. Is it quite similar to this case? I personally think so.

In my mind, reverse engineering involves viewing something that one would not normally be able to view readily.

Re:Ridiculous...

[Anonymous Coward]

Don't you know that all car companies do more than this? They don't just buy a competitor's vehicle and drive around for awhile, they tear the thing down to the component parts.

Ford (or GM or Honda or you name it) buys a competitor's car and completely takes the thing apart, looking for changes since the last model, looking for ideas for their next model, seeing how the thing works.

An equivalent software practice would be dissassembling the code, finding parts you like and recreating them so they work with your code. We aren't just talking gross interface elements (like steering wheels), though they do that too.

The major difference here is the place that software has lawfully. Software, in practice, acts like a tool, but lawfully isn't treated that way. For example a text editor is more or less functionally equivalent to a type writer, but you don't own software (EULAs say so); you pay for usage. Software is protected by copyrights, while physical tools aren't. It probably stems from the fact that the plans for the tool (the source) isn't all that different from the tool itself (the distributed program).

Does anyone know if the compiler generated code or just the source is copyrighted?

Re:Ridiculous...

[Anonymous Coward]

What no kiddies trolls responding to this?

C'mon. It's an obvious candidate for some kind of joke involving various anatomical references.

Algorithms should be public-domain

[kramer2718]

When I was a programmer in Computer Science 101, someone copied one of my programs, and I was accused of cheating. When I went to talk to the professor about it, I confessed that I had helped another student explaining that I told him how to get a particular graphic to work properly. He replied that in that instance, I had done nothing wrong that algorithms are free to share. I was absolved (the plagiarism was different).

But I still think algorithms should be public domain! If you own a company, and you have a particularly cool algorithm you want to hide, you should have to either obfuscate or encrypt the machine code. There is absolutely no reason that algorithms should be protected IP.

Computer Science is a weird mixture of science and engineering. A lot of the theoretical and some of the applied work is very scientific, while most systems work is very much engineering. Scientific discoveries are not generally patentable, inventions are.

The compromise I propose is this: allow source code to be copyrighted, but deny the patentabilty of algorithms. As anyone who has programed knows, even with a detailed algorithm and specification, there still is a lot of engineering required to complete a finished product. That engineering work would still be protected.

Re:Algorithms should be public-domain

[larryleung]

But I still think algorithms should be public domain! ... There is absolutely no reason that algorithms should be protected IP.
I dont think you've provided enough justification for this. All you've said is that I did it in school and they didn't mind. But look at it from a lawmaker's pov.
Are all algorithms trivial and cost basically nothing to invent? (Clearly not.) Do we want people to invent them? (Definitely.) How do we compensate the inventors for their efforts to allow them to do what they do?
The only answer we have been able to come up with is patents, which are imperfect but an approximation of what we want.
But clearly there are huge benefits to developers to have all patents be public domain. Perhaps the only solution to this is to use the performer protocol, in which the society offers a one time reward for inventing something?

Re:Algorithms should be public-domain

[kramer2718]

Actually, my justification was not I did it in school and got away with it. My justification was more that algorithms are more mathematical discoveries than inventions. I guess the same could be said of many inventions (medecines are just biochemical discoveries).

I just really think it would benefit society most if algorithms were public domain. Let's face it most algorithms are developed in academia and fall into the public domain if the university doesn't patent them, but most of the funding for this research comes from government and corporate grants not from patent-royalties. Besides, I think code encryption and obfuscation provide plenty of protection for corporations.

Hmmm. Performer protocol, not bad...
Actually, that's somewhat similar to an idea I had...
It might greatly benefit society if the government applied eminent domain to IP. Suppose I make an invention that could greatly benefit society, but I'm not liscensing it cheaply enough to benefit many people. The government could pay me a fair price and then place my invention in the public domain. I definitely think the government should do this with the AIDS drugs so that people in Afric/Russia/etc. can afford them.

Re:Algorithms should be public-domain

[cyberon22]

>> The only answer we have been able to come up with is patents, which are imperfect but an approximation of what we want.

This is a very market-oriented approach. Are you sure the assumptions you make (people won't innovate without financial incentives, and firms are the source of most innovation) are correct in this case?

It seems to me that most algorithms are not invented in the private sector, but come out of places like academia. After all, if it were otherwise, shouldn't there be a lot of firms out there that specialize in doing nothing BUT researching algorithms? With the exception of RSA (a commercialized academic discovery, not a commercial invention), I can't think of one off the top of my head.

An alternate solution to strengthening copyright is the public funding of basic applied research, or using government clout in the market (government procurement has historically driven many software sectors) to promote open standards.

Re:Algorithms should be public-domain

[smallpaul]

It seems to me that most algorithms are not invented in the private sector, but come out of places like academia. After all, if it were otherwise, shouldn't there be a lot of firms out there that specialize in doing nothing BUT researching algorithms?

No, because it is quite difficult to market an algorithm. Developer: "We've got this really cool way of sortng lists of strings." CIO: "Ummm...does it do spam filtering?" Developer: "I guess it could." CIO: "Call me back when it does." The valuable part is usually not inventing an algorithm, but discovering a problem that it solves. If you know what problem it solves, you might as well go to market with a software product that is a complete solution that a customer can buy. You'll make a lot more money than if you have to convince some middleman that your algorithm could make a ton of money if only somebody put it in a product.

Re:Algorithms should be public-domain

[nacturation]

Besides, I think code encryption and obfuscation provide plenty of protection for corporations.

And we can see how well this encryption and obfuscation works for protecting video games from being cracked. :)

Re:Algorithms should be public-domain

[Spam.B.gone]

But I still think algorithms should be public domain! If you own a company, and you have a particularly cool algorithm you want to hide, you should have to either obfuscate or encrypt the machine code.
Well it won't run very well if it is encrypted, and if you supply the key with the product, encryption won't help very much.
Your remark that algoritmes should be in the public domain means exactly that one could not make a living designing algorithmes.

Re:Algorithms should be public-domain

[Jerf]

I guess the same could be said of many inventions (medecines are just biochemical discoveries).

One of the justifications for medicinal patents is that medicines are not Just biochemical discoveries. In fact, in order to be a useful medicine we do not necessarily need to know the exact molecular makeup.

Two things are necessary:

• A process for manufacturing the medicine practically, which may be extremely complicated and non-obvious.
• Knowlege about how to apply the medicine to best effect, which requires painstaking experimentation.

In pure patent theory, what the patent protect is the first one, and theoretically you can make the same medicine in a different manner and patent it yourself. Realistically in the current environment, I wouldn't recommend that.

For medicine, you also need FDA approval, but that doesn't apply to most things.

Neither of the major concerns apply to software; if you know the algorithm, implementation is typically trivial, a matter of transliteration (as opposed to even translation; there's a difference). And figuring out how to best apply the algorithm is usually trivially obvious in what it does. (Now, noticing there's a better algorithm isn't always so easy...) So algorithms aren't like other physical inventions, since physical inventions typically require a description of how to practically create them.

Re:Algorithms should be public-domain

[HiThere]

Well, not precisely. It would make it difficult making a living designing algorithms, so one would probably need to supplement it by doing something else, like, perhaps, teaching students.

OTOH, saying that you can't patent it doesn't say that you can't keep it a trade secret, and use it that way. Or, if it were of an appropriate nature, that you couldn't copyright it.

But those techniques are already available. Not easy, but available. And I feel that he's right, that algorithms shouldn't be patentable. I would go further and say that NO mathematical abstraction should be patentable. And that it should not be made patentable merely because one is able to construct a mechanical realization of the abstraction. (The mechanical realizaton, however, should be patentable.)

However, my opinion on the whole matter is suspect, as I believe that the US patent system is so broken that it should be totally revoked, and recreated from scratch. Preferably by a class of high school sophomores, who would almost certainly do a better job. (There's no real chance of this happening, but I do believe that the result would probably [est. 75%] be better and [est. 50%] be much better.)

Re:Algorithms should be public-domain

[larryleung]

The valuable part is usually not inventing an algorithm, but discovering a problem that it solves
True. That's why a lot of patent disclosures go like: method X to solve Y. The target problem is essential to the patented idea and hence costs time and effort to find. Also, you don't market the algorithm but the product with the algorithm. That's how you make money. You just need a way to keep the competition from taking the algorithm from you immediately so you reap some reward of having the algorithm first and hence pay for its development costs.

Re:Algorithms should be public-domain

[larryleung]

This is a very market-oriented approach. Are you sure the assumptions you make (people won't innovate without financial incentives, and firms are the source of most innovation) are correct in this case?
It seems to me that most algorithms are not invented in the private sector, but come out of places like academia. After all, if it were otherwise, shouldn't there be a lot of firms out there that specialize in doing nothing BUT researching algorithms? With the exception of RSA (a commercialized academic discovery, not a commercial invention), I can't think of one off the top of my head.
Yes, this is a market oriented approach and is the way policymakers approach the problem, as i have stated earlier. I don't completely agree with it, but the assumptions aren't too off base from an economics pov. (And yes, you may not want the rights a patent gives you but you also don't haveta apply for the patent.)
If you want an example of algorithms invented in the private sector, look at Xerox PARC. Being a pure research lab, their major revenue stream is the royalties on patents. That is what allows them to support their researchers.
Most large companies will have some sort of research division, but pure research companies are hard to find due to the lack of incentive created by patents. Think about how far back the rewards are from the investment and how uncalculable the risks are for that investment. Its really easy to see that it'll be a tough business to survive in even with patents as easy to get and as encompassing.

Re:Algorithms should be public-domain

[Anonymous Coward]

> The compromise I propose is this: allow source code to be copyrighted, but deny the patentabilty of algorithms.

That's more than just a reasonable compromise.

That very same conclusion has been reached independently by a significant majority of developers who work in the software industry. I hold that view, along with every software developer I have ever discussed this with.

When a significant majority of people in an industry independently all reach the same conclusion, it clearly should be adopted as public policy.

Re:Algorithms should be public-domain

[jafuser]

Patenting things which are fundamental *atoms* of information technology should not be allowed. It would be like patenting algebra or the number pi.

The original premise of the patent process (to promote the advancement of invention) does not in practice apply to software development. Software will advance just as quickly on it's own with or without patents being involved.

As a matter of fact, in many ways patents on information technology is actually slowing down the advancement of the field. Just look at all the workarounds that have to be implemented to avoid some basic principle of information technology. It's getting quite maddening (in all senses of the word).

Re:Algorithms should be public-domain

[Asprin]

Computer Science is a weird mixture of science and engineering. A lot of the theoretical and some of the applied work is very scientific, while most systems work is very much engineering. Scientific discoveries are not generally patentable, inventions are.

I'm curious - what's your definition of "science"?

Re:Algorithms should be public-domain

[that _evil _gleek]

The real problem is once the lawyers are done with it, a patent on a method to do X
becomes a patent on any and all methods to do X.
And since so few people, apparently, understand software we get very silly, and sweeping patents, stuff that any guy with a Bachelors could do in side of a few hours,
face with the same problem... Not exactly Edison level commitment.
I was watching "This Old House" a few days back, they were going over post-hole
diggers, of manual types, they had the clam-shell and the "boston digger", I was pretty impressed with the boston digger, if some-one came up with it today, I'd say it would probably deserve a patent. But if hardware patents were like software patents,
both would have to pay royalties to some guy who had a patent on a garden spade, since it digs, and they dig, the others are clearly infringing, right? (Of course, I'd say not but who listens to me?)

If the system worked I woudn't have a problem with it, but it doesn't. What we are seeing is a move from capitalism to IP Feudalism, and we will all become serfs with no property, because its all been already doled out by the "Executive Branch", and no recourse to the law. Remeber, they don't have to give you a license, even if you can afford to pay the royalty. Mainly, its the same problem with any tech-issue, if the person or persons deciding the issue, don't know enough to judge, they go the way the people they want to please want. Not really professional jurispudence, is it?
The other problem with lack of tech-knowledge, is the fact they don't look ahead, if this is true, anyone can insert spy-ware in anything, how could one tell?

Re:Algorithms should be public-domain

[stephentyrone]

Of course algorithms should be patentable - suppose I come up with a great new video codec tomorrow, much better than anything else, but I can't patent it, I can only copyright the source code.

Now, I'm faced with a choice. I could develop closed-source software implementing the codec, and refrain from publishing my new algorithm, thus protecting my innovation with the copyright I'm allowed - if I do this, I'll probably make myself a tidy profit (assuming I know someone who knows the least bit about marketing), and be quite happy with the situation.

Or, I could publish the details of my algorithm, ensuring that no one will be willing to pay for my implementation (well, almost no one) - I can't get paid for my innovation, and the companies that already dominate the market will get my R&D efforts for free. They'll put their own implementation into their products, and pocket the proceeds.

Let's say I'm a noble minded researcher; I don't really care whether or not I get rich off my invention - on the other hand, I'm not stupid, I don't want anyone else getting rich off of it if I'm not getting some of the pie. Clearly, I'm going to keep my source closed, I'm not going to publish. This prevents my algorithm from being used in open-source products, blocks other researchers from extending and improving my results and generally holds back progress.

On the other hand, suppose that I can patent my great new codec. Now I have a third option. I can patent it, and set up a reasonable licensing scheme: you're free to implement my for private non-commercial use, research, etc. If you're getting paid from your implementation, then I want a cut of it, too. Now I can publish, its possible for the open-source and academic communities to use my great new invention, it's available for more research work, and at the same time, I can prevent other people from getting rich off of my work without also compensating me. This is *exactly* why patents exist: to allow people to profit from their work without impeding the flow of "progress".

Now, am I a loony git who thinks that *any* algorithm should be patentable? of course not. There's a reasonable standard, and it's illustrated perfectly by my previous example. An algorithm should be patentable only if the difficulty/effort in creating the algorithm sufficiently exceeds the difficulty/effort in implementing the algorithm.

Why this standard? If the "implementation cost" far exceeds the "invention cost", then no one's going to want to use their own implementation; they'll happily pay for mine, and a mere copyright on the source will suffice to protect me. Furthermore, the fact that the implementation cost far exceeds the invention cost is a strong indication that the algorithm in question fails to qualify as something that most people in the field wouldn't have thought up in the same situation (this should be a necessary standard for ALL patents - they should be INNOVATIVE).

On the other hand, if the "invention cost" exceeds the "implementation cost", then everyone else will develop their own implementations rather than use mine if the algorithm itself isn't protected; Conversely, since the invention cost/difficulty/effort/etc was so substantial, my invention is exactly the sort of thing that should be protected as innovative - something that the average person in the field wouldn't have thought of.

It should be noted that this requirement that the cost of invention far exceed the cost of implementation would actually eliminate the vast, vast bulk of software patents - which is a good thing. Patents such as "one-click ___", where you see it in operation without any knowledge of its guts and immediately know how it works, or the marching cubes algorithm (patented by HP, I believe), which is just what any sensible person with some background in computational geometry or algorithms would do, without much thought, should be gotten rid of. In all likelihood, this standard should be applied across the board, not just in software/algorithms. But should patents be done away with entirely, even in a restricted field? Of course not, and I think my example establishes that pretty clearly.

Re:Algorithms should be public-domain

[cyberon22]

When I read economic "research" on questions like innovation in the software industry, I hardly see many people advancing neoclassical explanations for market development. I see more attention to path-dependent growth, standards competition, and things like critical mass. There are sound defensible models which - if right - suggest that patenting can be counterproductive in promoting innovation in certain industries.

So saying that these assumptions aren't off-base from an economics perspective doesn't say much. Why should we believe that your neoclassical assumptions accurately describe market dynamics?

Your post suggests that there are currently few incentives for research into basic algorithms. By your own assumptions however, this would lead me to ask why the United States currently has one of the richest legacies of innovation in software markets? It just doesn't make sense.

If anything, I'd agree with Paul above -- that commercial advances in algorithms occur in the commercial sector when necessary to solve concrete problems. In this case though, there is no direct link between the strength of patent protection and the incentive to innovate. Stronger patent protection would therefore be extremely unlikely to boost innovation, while doing an incredible amount to restrain market competition and innovation in other firms.

Incidentally, Xerox PARC may be a research lab, but I wasn't aware they conduct research into the sort of algorithms under discussion. Perhaps I'm wrong.

Re:It's about time

[anto]

This is the equivalent of stating that the only reason for knowing what voltage your mains power runs at is so you can steal it. While theft is *one* reason for reverse-engineering there are many others. If you want your IP protected don't rely on it being hard to see.

Try fake money.

[Ayanami Rei]

Draw a picture of a dead president on a piece of green paper, then cut it out into a rectangular shape. It's about twice as long as it is wide.

Shrink wrap it with a EULA that the fare collector must accept the contents as legal tender. If he claims your bill is fake when he puts it up to a light, tell him that he can't reverse engineer your money, or risk a civil suit.

Problem solved.

Bad Baystate... no cookie

[calebb]

Bowers had offered to work with Baystate in the late '80s, but the company had rejected his offers [...] Baystate also pressured CAD software company Cadkey not to distribute Bowers' product, and later, Baystate purchased Cadkey and shut Bowers out of the market [...]

This sounds familiar; Find your biggest competitor, buy out their potential investors & then 'borrow' their technology. I do feel sorry for Bowers in all this! He mortgaged his house 10 years ago to fund the marketing of his software & he still hasn't received a dime from Baystate.

Meeker noted that Baystate had reproduced a handful of errors in Bowers program

Yup, that's a problem. It's hard to rationalize something like that... then again, judges aren't always tech savvy & they have been convinced that software DVD decoders must digitally copy a DVD in order to play it, thereby making DVD playback on a PC illegal. I'm sure Baystate's lawyers tried to argue that in making a 'similar' GUI to Bower's program, they ran into the same bugs by accident - or by design - or something else just as ludicrous.

Don't get me wrong, I'm all for capitalism; But decompiling your competitor's software is not the same as merely using ideas that seem to work well for your competitor.

Re:Bad Baystate... no cookie

[Nakoruru]

The problem is that without clicking on 'I Agree' you have no right to copy the software at all. The license agreement is the only thing that can give you permission to make a copy.

Come on

[SargeZT]

This is pure R&D People. It's been happening for hundreds if not thousands of years. You have to find out the weaknesses and strength's of an opponent, and improve upon both. Not only has this been happenening for a long time, it has moved our economy ahead by setting a standard for companies to adhere to. If Product A dosen't do as much as Product B, it's obvious Product A is going to win the battle.

Re:Come on

[stephanruby]

Another example of someone who read the /. headline, but not the article.

Re:Come on

[Anonymous Coward]

"If Product A dosen't do as much as Product B, it's obvious Product A is going to win the battle."

Hence the dominance of Microsoft.

Alternative Installers?

[femto]

So what are the rules if you don't actually install the software? Instead you manually unpack the software on to the drive and never click on any 'I agree' button.

I can see one way companies might get around this is to encrypt the software, and have decryption initiated by the 'I agree' button. The DMCA would then be invoked against anyone who wrote their own installation program. Even then, is it cut and dried whether an alternative installation system is covered by the DMCA?

Is installing a piece of software one has just bought an act of copyright circumvention? You're not circumventing copyright, just the contract the author has attached. One could argue that you can't use a work without agreeing to the author's contract, but hasn't the author already made a contract with you by accepting your money?

Re:Alternative Installers?

[YOU LIKEWISE FAIL IT]

So what are the rules if you don't actually install the software? Instead you manually unpack the software on to the drive and never click on any 'I agree' button.

Back in the days when I was heavily into reverse engineering, we occasionally did things like this as a "learning exercise" ( it's really not that difficult to blow away a couple of calls to MessageBoxA with a carpet of NOP's, so the value of the exercise is questionable at best ).

The advice we got ( albeit, not from real lawyers ) was that the wording of ( most ) of the EULA's stated that we had no right to use the software short of viewing and acknowledging the license, regardless of the monies we might have tendered for it. No click, no license, illegal usage. The cash is just to get you to that screen, although the more generous ones will allow you to return the software for a refund if you refuse to comply.

The analogy made at the time was that jumping around the license acceptance screens one way or the other to get at the juicy marrow^Wsoftware within is like sneaking onto a skydiving plane to avoid signing the disclaimer of liabilities, even if you've paid in advance. It's a pretty awful analogy.

Any and all lawyers are invited to present a non-crappy analogy. :-)

-- YLFI

Re:Alternative Installers?

[sir_cello]

You already opened the shrinkwrap and agreed to a shrinkwrap license, or you downloaded the software through a clickwrap license. This means that even before you've agreed to the installer's "I agree", then you've already bound yourself to contractual terms. There is a lot of literature about the validity of click/shrinkwrap licenses, and about issues of how they can/can't be modified by the subsequent installer license. Have no fear that these issues are actively debated in the legal community.

As for your DMCA question: you don't even need encryption: digital rights management and copy protection systems don't necessarily imply any level of strong crypto: so the fact that the software is bundled with an installer, and you circumvent the installer to avoid the "I agree" Terms and Conditions, means that you are probably violating DMCA provisions.

As for your final question: these issues are debated, and although you have already exchanged money (e.g. you bought the software as a result of the click/shrinkwrap license), then if it turns out that there are any subsequent different licenses (e.g. the installer's "I agree") then you are within your rights to return the software for a full refund. Once you agree to all of these license s though, it's too late (unless the software is defective in some way / etc and you return it because it doesn't work or fails to live up to requirements).

Re:Alternative Installers?

[arkanes]

I still think this is bullhooey. At least one court case has agreed with me, too - the software is not presented as a license, it's presented as a sale. There's no signature and no consideration involved. The license on the box doesn't present the full terms and conditions ("You agree to something arbitrary that you don't have access to" can hardly be considered a meaningful description of the terms). If the EULA was presented at the register and you signed for it then, that would be a different story.

Stuff you download where the license terms are presented up front also has a lot more validity in my eyes (although, again, I question the power of companies to enforce these terms). As for the DMCA, it's not illegal to crack your own stuff, only to provide tools or information to allow other people to crack it (this is a nod to fair use). I can't see any reason why a court would consider you bound to terms that you didn't even implicitly agree too, especially when there's no legal obligation for you to agree to those terms.

Re:Alternative Installers?

[DavidTC]

The reason there's no good analogy is that it doesn't make any legal sense whatsoever.

According to copyright law, once you've purchased software, you can run it, period, in whatever way, shape, or form is needed for it to run. You don't need a program to give you permission after you click okay.

Re:Alternative Installers?

[fizbin]

Real lawyers probably would have told you about Section 117 (a) of US copyright law. Part 1 of that section specifically deals with the legal logic that the in-memory copy created by the computer when you execute a given program requires a license from the publisher.

Then again, I'm not a real lawyer, so what do I know?

This is ridiculous... Is it legal or not?

[cbreaker]

I mean, reverse-engineering is legal, right?

Unless someone says "ohh, don't do that!"?

I don't see how it's legal to forbid something that is legal just because it's under the blanked of the "EULA."

What's next? I think the bigger problem should be addressing what is acceptable for EULA terms.

From the little info we have it sounds solid

[SmoothTom]

Another company looking at the interface and saying "Gee, that's good idea. Can we come up with something like that, or even better?" is quite all right. that's the way things get better.

If, however, they take it apart and copy it right down to the included errors, that's theft, and not all right.

I have to assume that the evidence given proved the theft, and that's why it went through at least three judicial levels and came out the same each time.

Congratulations are due the winner.

--
Tomas

Re:From the little info we have it sounds solid

[Gumshoe]

If, however, they take it apart and copy it right down to the included errors, that's theft, and not all right.

It's not theft, it's copyright infringement. Two completely different concepts.

Ninjas...

[Anonymous Coward]

I suggest including a ninja in every box of software who will keep a watchful eye on the binaries in case they are being reverse-engineered.

Because ninjas are terribly hard to notice for the untrained eye, they could easily lurk about the computer area (be it in a bedroom or a corporate cube farm).

Once someone tries to "have his way" with the binary, BAM, the ninja will bust out, drive a few ninja stars through the computer, and vanish in a puff of smoke.

I'm a fucking genius.

Re:Ninjas...

[Anonymous Coward]

Apparantly, not only am I a genius, but I also can't write any proper English.

Hooray!

Re:Ninjas...

[Anonymous Coward]

You can't write any proper English? Well that is O.K.

I mean after all you know that the realultimatepower lies with Ninjas.

What better way to protect the industrial secrets embedded in your binaries than by utilizing a Ninja who is ready to pop a boner, flip out, slaughter the entire population of the area the reverse-enginerring miscreant lives in and then wail on his electric guitar?

I can't think of any better way than that. Except maybe using more than one Ninja.

Re:Ninjas...

[dumboy]

Ninjas are sooooooooooo sweet that I want to crap my pants. Yes, I know its OT, but ninjas are awesome.

But wait there's more!

[Anonymous Coward]

Where o' where can we find an example of someone else doing this? Why do GUI's become obvious, and therfore unprotected, after someone else designs it but NOT when I do it?

La la la...

[Ayanami Rei]

Poor baby.

By this logic, you should be able to take apart your car to see what kind of pieces it's made of. God forbid.

It's not the disassembly that's bad, it's when you use it to create a competing product. OTH, if it works exactly the same, the original designers will be able to see that it's bug-compatible (including race conditions), and thus be able to invoke some flavor of IP violation.

And when your oh-so-precious product crashes my systems and I want to single step through it to see what you fucked up, what tools will I be able to use besides these illegal tools to give you a point to start debugging at?

Re:La la la...

[stephanruby]

By this logic, you should be able to take apart your car to see what kind of pieces it's made of. God forbid.

No, by this logic, it only means you shouldn't reproduce the exact same mistakes your competitor made when you design your own car, otherwise it's going to look mightily suspicious.

Please tell me that the case doesn't hinge on this

[shr3k]

But Bowers' lawyer countered that Baystate had two weeks in its development schedule to examine Bowers' software, giving the software vendor time to look at more than the user interface. "They had two weeks to reverse engineer his software," countered Bowers' lawyer, Frederic Meeker, of Banner and Witcoff, of Washington, D.C. "Two weeks is a long time -- that's a lot of looking."

You mean to tell me that this guy's argument is "they had time to do it, so thus they did it" ?!!! Never mind that two weeks is really not that much time unless the "features" they "lifted" were not too complicated.

I can't believe this case has lasted this long because of that reasoning. I don't know if this would be legal precedent, but I imagine SCO could say Linux developers had twenty years to look at and use AT&T UNIX.

Once again, stupidity rules the day.

hehe

[autopr0n]

Well, I don't really know if the courts would claim 'you agree' if software is automaticaly downloaded to your computer. If it were up to me, there would be a government standard set for what you can and can't do with software you buy (under a certan price, say $10,000). No haggling, no bullshit EULAs.

My take

[Raul654]

(snip) ...Baystate claims it looked only at Bowers' user interface in order to improve its CAD software product. "There was no evidence of cracking encrypted source code or anything of that nature," said Bob Kann, Baystate's lawyer, of Bromberg and Sunstein, in Boston. "This may cause havoc in the industry. Before this case, it was perfectly legal to evaluate a competitor's product."

But Bowers' lawyer countered that Baystate had two weeks in its development schedule to examine Bowers' software, giving the software vendor time to look at more than the user interface. "They had two weeks to reverse engineer his software," countered Bowers' lawyer, Frederic Meeker, of Banner and Witcoff, of Washington, D.C. "Two weeks is a long time -- that's a lot of looking."

...

"From a small software company's perspective, it's virtually impossible to recover your investment without some sort of protection," Meeker said. "That's a standard provision ... you put in a contract with another company so that they can't reverse engineer the trade secret out of the product. That software took years to develop."(/snip)

Ok, so this boils down to a question of fact, which is a question for a jury to decide. The burden of proof ["preponderence of the evidence" in this case, IIRC] rests squarly on the plantiff.
That question is -- did Baystate decompile Bower's cad program to make their own. If so, they are guilty. If Baystate did not - if they wrote their program to match the look, feel, and usabilty of Bower's program, then they are obviously not guilty, shrinkwrap license not withstanding. I don't think you could possibly claim having a certain user-interface or user-available options are trade secrets, merely how you implement them.

Re:My take

[term8or]

Well, yes, but a user-interface should be protected property under law. In the UK, the interface could be protected under the (registered) design rights, and trademark law.

Anyone who thinks that a user-interface doesn't take a great deal of effort to get right, obviously has not created one.

Obviously, I have no objection to people making the interface Free or even free, but I do have an objection to property being stolen.

Re:It's about time

[RTPMatt]

wait just a second, just what is ment by "studying competitors' products"?

does this mean that if i have used M$ office say, at my college, i am unable to contribute to open office, or some other office type project?

this is incredibly stupid in my (uneducated) opinion. whats next, are we going to tell authors they cannot write books about a subject if they read a different book on the subject beforehand?
fantastic, only people completly uneducated in a subject will be able to do anything in the field. this should make for some fantastic inovation!!

-matt

Re:It's about time

[Anonymous Coward]

...you are seeing that which you were not meant to see.

OK, asshole, lets also have each car manufacturer patent its own arrangement for the gearshift patterns. Then, every time you get into a different car, you get to look around to find out how to go from one gear to the other. Better yet, only one manufacturer gets to call the gears first, second and third. The rest can call them something like medium, large and venti. Or pink, chartreuse and mauve. Oh, forget it, you're such a pussy you probably can't drive a stick shift anyway.

By the way, if you're not going to get pissed off at this posting, you weren't meant to see it, so get the fuck out of here.

Re:It's about time

[Waffle Iron]

Did you type your comment on a PC? If so, was it an IBM brand PC? If not, you're using a totally reverse-engineered machine, and by your definition that's illicit stolen goods. You're no better than a common thief.

To atone for your sins, you need to take a cue from Senator Hatch and physically destroy your machine. Now.

Huh?

[autopr0n]

told him how to get a particular graphic to work properly. He replied that in that instance, I had done nothing wrong that algorithms are free to share. I was absolved (the plagiarism was different).

I know a guy who got accused of cheating because he left his assignments on an open share, and someone found them and turned 'em in as their own. What does this have to do with anything? Nothing at all.

The academic world has nothing to do with IP law. If you paid me to write an essay for you and you turn it in, it's called cheating. If you pay me to write an essay, and you print it and sell it, it's called publishing. If I let people copy my source code for their homework, it's cheating. If I let them copy my source code for their real work, it's called 'free software'.

Re:Huh?

[kramer2718]

I realize that the regulations are different, but perhaps they should be more similar. I understand the need for companies to protect products, but algorithms are not products. They are very abstract high level things and it would benefit technological progress and humanity in general if they were free.

Re:Huh?

[nacturation]

I realize that the regulations are different, but perhaps they should be more similar. I understand the need for companies to protect products, but algorithms are not products. They are very abstract high level things and it would benefit technological progress and humanity in general if they were free.

So if I come up with an algorithm to turn lead into gold, I wouldn't be able to get a patent on it with your system? What about an algorithm which successfully creates a sentient Artificial Intelligence program? Not patentable?

Re:Huh?

[Exiler]

If you came up with an algorithm to turn lead into gold I'd be disgusted.

I knew modern PCs were running hot, but the ability to melt lead is just insane!

Warning:Offtopic paragraph.
By the way, if gold became that commonplace it'd be useless. It's too soft for any metalworking and I think the only property of it that would be useful would be the fact that it's quite a decent conductor...

Re:Huh?

[nicodaemos]

So if I come up with an algorithm to turn lead into gold, I wouldn't be able to get a patent on it with your system?

In his system you would still be able to get a patent on lead to gold conversion since that is a process, but not an algorithm.

Re:Huh?

[nacturation]

An algorithm is just a subset of a process, specifically, relating to computers. My point, in case you missed it, is this: what's the difference between doing a series of actions on a computer (algorithm) and doing a series of actions with chemicals (process)? Why should one be fundamentally unpatentable using his system whereas the other one is?

Re:It's about time

[MrLint]

When yo look at someone's compiled code, you are seeing that which you were not meant to see.

What is it that you are not meant to see? The are distributing it, and yet they dont want you to see it?

Tim, while i can see you are trying to express something here, I think you need to get some more fully formed thoughts out.

Lets begin, you claim companies have NDAs to prevent people from seeing their 'code'. I can only assume you mean source code, as when you send a product out the door everyone gets to see the object code. Now if a competitor is disassembling a product they not only (usually) haven't seen the code but aren't under NDA. So the point is moot.

As for theft, well this is a really different thing than what is generally termed 'reverse engineering' If they were 'pure theft' they would change all the names and release it as their own product (which sadly does happen). However R.E. is meant to dissect the inner workings as to recreate the 'black box' if you will. This has been decided to be legal a bunch of times.. please see Compaq vs IBM (PC bios) and Connectix vs sony (playstation emulator).

Technically speaking yes.. disassembly would be 'for their own benefit', the benefit of making a compatible system. Familiarity with the terms it really vital here.

Reverse engineering is good

[hibiki_r]

Allowing a license like this to stop reverse engineering/product evaluation is probably one of the worst things you can do to the software industry today. What if MS or Apple had done just that while releasing Windows/MacOS? Would the maker of any window manager that had window title bar, or a start menu, be sued for reverse engineering?

Spending two weeks reviewing the competition's product seems like a perfectly reasonable amount of time to learn its strengths and weaknesses. The only way to compete in an already established market is to build a better product than your competitors (cheaper/better/faster). How are we supposed to do that w/o being able to analyze the competitors' product?

Also, if reverse engineering can be banned, why try to patent anything? Patents eventually expire. A "trade secret" like, lets say, your basic UI design, that is only communicated to your customers after you've accepted the license, seems to me just as good protection as a patent, since anyone copying has broken your license, but offers no expiration date.

Hopefully the next time someone is set to court for something like this the result will be different. Reverse engineering is key to allow competition, the key principle to our economy. Undermine competition, and you are undermining one of the key foundations of our society. I just hope the next judge undestands that

Oh please...

[Ayanami Rei]

UIs don't make their own errors. You know what I'm talking about.

If a dialog box pops up with an error message in it, guaranteed it was generated by something behind the UI.

Copying a UI is copying the location of menu items, command line syntax, etc. They keep saying "UI" and I keep hearing "what it looks like" or "how the toolbars look" or "whether its a modeless dialog or tabs"

Would you forget to add the SCROLL_UP event handler in the custom GDI object just like the original designer by opening up the app and using it?

Re:Oh please...

[The Vulture]

Although reverse engineering is generally defined as reversing software's machine code back to the source code, Baystate claims it looked only at Bowers' user interface in order to improve its CAD software product. "There was no evidence of cracking encrypted source code or anything of that nature," said Bob Kann, Baystate's lawyer, of Bromberg and Sunstein, in Boston. "This may cause havoc in the industry. Before this case, it was perfectly legal to evaluate a competitor's product."

and

Meeker noted that Baystate had reproduced a handful of errors in Bowers program. Kann, Baystate's lawyer, said all the errors came from Bowers' user interface, not the underlying code.

Unfortunately, the article doesn't specify what types of UI errors really occured, only an allegation that code was copied. It could be something as simple as a couple of menu items misspelled. Without more details, it's hard to comment

Okay, now yes, in your example (which, since I'm not too familar with Windows GDI programming, I do UNIX and vxWorks embedded, I presume adds a handler for a scrollbar up arrow being clicked on), I would be more suspicious.

Personally, I don't have a problem with people copying look and feel. Where I do draw the line is actually copying code from existing products when you do not have the license to do so (copyright violation).

-- Joe

Re:Oh please...

[huey83]

>UIs don't make their own errors.

There's more under the surface of an UI than just the "look" and "feel". You can add some pretty neat funtions to an UI that require advanced skills and a lot of debugging. You might say those are not part of the user interface, but in fact they do not belong to the core program at all. It's just for ergonomic reasons.

And, honestly, reproducing other people's errors is more than just a dumb coincidence/action/whatever.

Re:Oh please...

[HiThere]

I don't know what toolkits you've used, but most of the one's I've used have errors built into them. (Typically these will be fixed in an upgrade or two.) So you can, indeed, have interface errors identical between programs merely because they used the same series of GUI toolkit calls. Or sometimes even just made the same call to a particular (usually fancy) toolkit function. An example of this might be a menu that didn't extend itself to include all items on the menu item list. (I've run into that one, so I know it has existed. And I'd be surprised if someone else used the same took kit and DIDN'T experience the same error.)

Re:It's about time

[shepd]

>Reverse engineering is nothing more than the common theft of intelectual property.

Please show me how, when I draw a schematic diagram of my motherboard ABiT's intellectual property has been removed from their presence, never to be replaced, and has entered mine. Show me how they will no longer be able to manufacture this motherboard if I made duplicates, as they would no longer have the design for it. Show me how nVidia's design documents would be magically transported into my home if I should reverse engineer their nForce2 chipset.

Theft (in the sense you are using the word) cannot ocurr without a loss:

theft

\Theft\, n. [OE. thefte, AS. [thorn]i['e]f[eth]e, [thorn][=y]f[eth]e, [thorn]e['o]f[eth]e. See Thief.] 1. (Law) The act of stealing; specifically, the felonious taking and removing of personal property, with an intent to deprive the rightful owner of the same; larceny.

Note: To constitute theft there must be a taking without the owner's consent, and it must be unlawful or felonious; every part of the property stolen must be removed, however slightly, from its former position; and it must be, at least momentarily, in the complete possession of the thief. See Larceny, and the Note under Robbery.

Source: Webster's Revised Unabridged Dictionary, © 1996, 1998 MICRA, Inc.

Next time, use the word steal. Then at least you can suggest reverse engineering that intellectual property was like "stealing a kiss" (which is never a bad thing, so if you were to rebut me as such, I'd leave it at that).

Either that, or get off the soap box and use the words people in a real court have to use: Violation of the right of the plaintiff to enjoy monopoly status on a copyrighted design or patent.

why not mod this up?

[Anonymous Coward]

Brilliant post, man.

Re:[OT] HELP REQUIRED

[cscx]

You should get RMS to go with you, and he can give them a long-winded lecture on why train fares should be Free, with a capital F.

Missed the point...

[sbryant]

The point is not so much that reverse engineering - it's more the whole thing about the EULA. Here's a quote:

The legality of this practice, called reverse engineering, is in question after a lower court found that a software company had violated a shrink-wrapped license contract when it reverse-engineered a competitor's piece of software.

Another quote:

Although the breach of contract ruling applies only to the U.S. Court of Appeals for the Federal Circuit, the Supreme Court's lack of action could embolden other software companies to prohibit reverse engineering or take away other fair use rights allowed under copyright law by including such prohibitions in an end user license agreement, said Karen Copenhaver, a patent and intellectual property lawyer with Testa, Hurwitz and Thibeault, of Boston.

.. and another:

The impact of the case, said Copenhaver, is that end user license agreements could become more restrictive. "Saying you can reserve that [reverse engineering prohibition] in a shrink-wrap license is saying a company can put virtually anything in a shrink-wrap," Copenhaver said. "Now there are very few limitations on what people will try to put on a shrink-wrap."

The EULA terms are unavailable at the time of purchase, so you might be buying software you can't even use! This was the reason that Germany decided that such licences are not legally binding (which avoids the other problem entirely). What other rights will they to take away from us?

Does the US have a concept of inalienable rights? (i.e. rights that can't be taken away, for those who don't speak such good English) Even if reverse engineering is not inalienable, I'd be trying to show that the buyer was forced to give legal rights, without being able to find out about it before purchasing.

-- Steve

Re:Missed the point...

[kcbrown]

Does the US have a concept of inalienable rights? (i.e. rights that can't be taken away, for those who don't speak such good English)

It has the concept. But given how things have been going here in the last 10-20 years or so, I'd say that "inalienable rights" are only a concept, even though there are some explicitly listed in the Constitution.

Not even those are "inalienable" in a country where the letter of the law, and not the intention of the law, is the only thing that counts in court (well, that and how big your pocketbook is).

Re:Missed the point...

[Anonymous Coward]

...And yet the US Supreme Court carved out a privacy right to homosexual sodomy in where none existed before.

Re:Missed the point...

[RickHunter]

Does the US have a concept of inalienable rights?

Yes. Unfortunately, they were found to have entered the country from Europe without a proper VISA, and were thus alien rights. They were deported in the mid-80s, and no-one in America has seen them since. Recent reports from the Department of Homeland Security and the White House suggest that they may be working with secret Euro-terrorist cells in Lichenstein, developing WMDs to be used to conquer the world, or possibly just rain on the President's parade.

EULA on DNA

[Rumbler]

I think I'll put an EULA on my DNA, so that I can sue anyone that tries to reverse engineer my genes. Then, when genetic-based drugs become the norm, I'll sue for EULA violation.

When they tell me that the genome was mapped before my EULA, I'll simply reply that I'm a recently released version (into adulthood).

I'll also release a seperate EULA to all potential girlfriends, stating explicitly what fair-use (or should I say, fair play?) entails when handling my hard and software. Because, you know, the Ladies LOVE a sexy EULA.

Yes... Yes.

Re:EULA on DNA

[dpete4552]

Wow, that must be the most unfunny thing I have ever heard...

Re:EULA on DNA

[91degrees]

I've considered publishing my fingerprints and retinal scans (approx US$15 million per copy). With a clause in the copyright information preventing them using it with "implied" consent.

Just be interesting to be able to prosecute anyone who uses them for copyright infringment and loss of earnings. I feel that $15 million will be adequate to compensat me for loss of privacy.

Re:EULA on DNA

[Anonymous Coward]

your missing the point. now you can sue her if she gets pregnant for copyright violation. heck you can even sue her for dmca violation. imagine the possibilities........

now the only problem is where to put these damn shrinkwrap license.

Re:EULA on DNA

[julesh]

I don't think you own the copyright on your own DNA. In fact, I suspect that right resides with your mother (unless she has signed any contracts which give you specific rights) as it was actions performed by her body which gave rise to it (note that if you were conceived by IVF, the copyright may reside with the clinic unless you were a work for hire, I'm not aware of any precedents in this area). This means that any action in which your DNA is copied is an act prohibited by copyright, and which your mother has the right to control. This would not only include reproduction, but also growth of any form that involves the creation of new cells.

Stand by to be sued...

oldskool

[Anonymous Coward]

Unfortunately, you have no flair and no style. But damn, you're effective. Quick, short, to the point, get 'em in the gut before they have a chance to think. Excellent.

Re:It's about time

[Anonymous Coward]

Oh shit that owned.

As a licensed user of Bower's software in the 80s

[Anonymous Coward]

As a licensed user of Bower's software in the late 80's I was never very impressed with the program. I keep hoping that it would turn into a useful tool but it never did and Bowers wouldn't take any input from his users. I eventually discontinued my subscription (that's how it was distributed). Honestly, I'm surprised anyone would want to steal it -- it's hard to imagine something that could have been worse. Most likely the reason he went out of business is because his software, um, sucked.

This would be great for SCO

[Billly Gates]

If the contract case covers look and feel as reverse engineering and copyright violation, expect SCO to squash Linux once and for all.

Lets hope for the best. The effects could be quite damaging. Compatibility would also be outlawed which SCO would attack any Unix around for that reason.

More about patents, less about reverse engineering

[mpthompson]

Even though Bower's won the case in part on the premise that Baystate broke the EULA and reverse engineered his CAD template system, it seems the more important issue is that Baystate was found guilty of infringing on Bower's 1990 patent. It only served to bolster the patent infringement case and gain the sympathy of the court that Baystate apparently ignored the EULA and set out to purposely reverse engineer the "trade secrets" in Bower's product.

However, if the patent didn't exist would Bower's have ultimately won this case based purely on the reverse engineering clauses in the EULA? I suspect not.

It seems that this case doesn't seem to offer a good precedent for preventing the common practice of reverse engineering through a EULA because so much of it is tied up in the patent infringement aspects of the case. Also, the article makes it seem that Baystate so closely copied the UI that they could have infringed copyrights as well which only serves to make the case even more ambiguous with regards to reverse engineering.

It would be more interesting if these other aspects of the case didn't exist and Bower's had simply tried to sue Baystate on the fact they violated the EULA by having two weeks of reverse engineering his product in their development schedule -- even if he couldn't point to specific trade secrets of his being used by Baystate in their product.

Therefore, I doubt this case will even put a dent in the common practice of reverse engineering competitors products.

BTW, IANAL so don't sue me if you get sued.

IEEE position

[sir_cello]

The IEEE USA is pursuing this:

* Press release regarding Baystate v Bowers:
http://www.ieeeusa.org/releases/2003/0604 03pr.html

* Details of the amicus curiae, etc:
http://www.ieeeusa.org/forum/policy/2003/Bay state0 60203.html

* General position on reverse engineering:
http://www.ieeeusa.org/forum/POSITIO NS/reverse.htm l

the power of EULA...

[5prite]

the Supreme Court's lack of action could embolden other software companies to prohibit reverse engineering or take away other fair use rights allowed under copyright law by including such prohibitions in an end user license agreement

that is horrible, why that EULA which I have never signed by me (just checked on that little I agree radio button) has given so much power, even to override copyright laws? Does this implicates that manufacturer can put ANY terms in the EULA? imagine this:

10. all your base belongs to us when you have installed software

and then the salesman of the software company knock the door of you home and say: 'all your base belongs to us, hands up!'

Anti Trust

[lllama]

I thought one of Microsoft's arguments in the anti-trust case was that competitors could always reverse engineer the Win APIs (I'm not MS bashing, I just can't think of any other cases).

Why prohibit? Because you're too stupid to protect

[Groote Ka]

Why would you prohibit reverse engineering? Probably because you're too stupid to protect your ideas otherwise. When a piece software takes you years to develop, there's surely something ingenious and original, so copyright will definitely protect you. For the code, for the lay-out etc.

Next, there are patents. I know this is a difficult one (especially at /.), but when you have developped some groundbraking application, in my opinion, you have the right for a patent as a reward. Should it be 20 years? That's another question.

In this way, there's no problem with reverse engineering, as there are no trade secrets anymore.

And what's next? Some rule that I am not allowed to open my computer to look what's inside and check what additional piece of hardware I need? And that this is enforced by putting all hardware in mould (same stuff they use for ICs)?

In my opinion, software (plus processor) is nothing more than a flexible way of setting up technical stuff; what you can do in software is also possible in hardware. Why treat software different and prohibit reverse engineering?

I suspect what happened...

[Ath]

There were two claims here in the lawsuit: 1) breach of the licensing contract and 2) patent infringment.

My guess is that the appellate court upheld the trial results in their entirety. As I did not read the appellate court opinion, who knows. The Supreme Court did nothing. They did not agree or disagree. They just chose not to hear the case.

The patent claim was probably pretty clear. But I suspect that the breach of contract claim was a tougher one, as the common law concept of reverse engineering is pretty well accepted. I would hope if reverse engineering bans in EULAs become common practice, the courts in general will apply the long standing common law rights of reverse engineering.

As the article pointed out, the plaintiff is very sympathetic in this case (just like in the McDonald's spilled hot coffee case).

We will see what happens.

Re:I suspect what happened...

[rollingcalf]

"As the article pointed out, the plaintiff is very sympathetic in this case (just like in the McDonald's spilled hot coffee case)."

Exactly, which is a big problem in the justice system. If it was a 230-lb muscular construction worker who spilled coffee on himself, he wouldn't have won a damn thing. But they felt sorry for the little old lady, so she won the case and a large monetary award.

Re:I suspect what happened...

[arkanes]

If he'd had 5 figures of medical bills for the skin grafts needed to reconstruct his genitals from the third degree burns inflicted on them, they might have. Especially if it was a male jury. The McDonalds case is hardly as open and shut as people like to make it out to be.

Re:I suspect what happened...

[Ath]

The McDonalds case is hardly as open and shut as people like to make it out to be.

Agreed. My point was only that a sympathetic plaintiff has at least the "weapon" of sympathy to their advantage.

I disagree that this is something wrong with the judicial system, as the appellate process very often "fixes" extreme results. The fact that the legal system is expensive at any level is a different problem.

This is about two things.

[Kris_J]

This story is confusing because the issue it about two separate things. "...$5.27 million for breach of contract and patent infringement..." The patent issue is one of user interface design. The breach of contract is about reverse engineering, though the, umm, defendant(?) denies having done any. While the case is worrisome, the article doesn't separate the two issues enough to be useful.

Of course, these click-through licences that give no real opportunity for negotiation really should be thrown out wholesale. If it wasn't for copyright being unable to cope with the mechanics of computing (installation, caches, etc) they'd be completely irrelivant. Problem is, technically, without some further contract you're not legally allowed to install any software you buy because it would be an unauthorised copy. What a damn mess.

Re:This is about two things.

[benjamindees]

Problem is, technically, without some further contract you're not legally allowed to install any software you buy because it would be an unauthorised copy.

As I understand it, that's fair use. It's okay to make copies for personal use, just like it's okay to brew beer for personal use. Unless it's placed in the 'public sphere', it doesn't exist jurisdictionally speaking. This argument applies (tangentially) to the sodomy laws that were recently struck down as well.

Re:This is about two things.

[arkanes]

This is not true. Copyright law makes specific exemption for copying neccesary for functionality - which includes copying to the hard drive for installation and copies in memory for using. It also makes specific exemption for backups. This is because copyright is supposed to keep you from benefiting at the expense of the original owner by distributing copies, not to keep you from doing whatever you want in the privacy of your own home.

Re:This is about two things.

[Kris_J]

I notice you don't mention caches in that list. Caches have been under inadvertant attack on and off around the world because most of the people that make the laws don't understand what they are. Face it, copyright no longer does what was intended (how can retrospectively increasing the life of copyright encourage dead artists to create?) and it now has related laws that question the legality of every day occurances. You know that anti-shock buffer in your discman -- it's probably illegal under one law or another. And if it's probably or possibly illegal under some obscure interpretation of some dubious law then you know the only ones able to benefit from it are deap-pocketed big business (and their lawyers).

Re:It's about time

[Anonymous Coward]

>>If you want your IP protected don't rely on it being hard to see.

Yes, that will be fine with your IP. How about my IP? I
have to have a way to examine your binaries to
find out if you cut-pasted from my IP.

I have to have a way of protecting my IP . Since
you provide no source, I have to have a way
to find out part of your IP is actually mine.

(These IP issues are too silly, they belong to
silly world. I is sad that a few have forced the
rest to live in such word.)

input and output

[pyrrho]

dissassembly is not what I understood of reverse engineering. I have always thought of reverse engineering as looking at the inputs and outputs, not dissassembly... in fact, I thought dissassembly was not a legal form of reverse engineering. That expression is covered. I still think that, though now I have to admit I might be wrong.

studying the function, the interface the user becomes trained in and the results, that's legit.

Other Issues

[sir_cello]

There are international agreements that imply allowance of reverse engineering. The US is a signatory to these.

TRIPS:

"Article 9, 2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such."
[http://www.wto.org/english/tratop_e/trips _e/t_agm 3_e.htm]

WTO Copyright Treaty:

"Article 2, Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such."
[http://www.wipo.org/eng/diplconf/distrib/ 94dc.htm ]

If you really want to read about this and reverse engineering in depth, try:

* "REVERSE ENGINEERING & DECOMPILATION OF COMPUTER PROGRAMS" [http://www.indlaw.com/publicdata/Articles/4_6_200 1_2_57_29_PM_Indlaw/article.pdf]

* "Reverse Engineering Clauses in Current Shrinkwrap and Clickwrap Contracts" [http://www.cptech.org/ecom/ucita/licenses/reverse .html]

* "THE LAW & ECONOMICS OF REVERSE ENGINEERING" [http://www.sims.berkeley.edu/~pam/papers/l&e reveng5.pdf]

* "REVERSE ENGINEERING UNDER SIEGE" [http://www.sims.berkeley.edu/~pam/papers/CACM on Bunner.pdf]

Re:[OT] HELP REQUIRED

[Choice Guy]

That's a good idea... I think they should be free too.

Intellectual property doesn't work

[Choice Guy]

Somebody post some anti-intellectual proprerty websites. Real linux users must have visted a few of them.

say goodbye to samba

[protect imagination]

i'm surprised nobody has mentioned samba yet. the samba team have been careful to work outside THE LAW (or at least it's jurisdiction), but it's only a matter of time before the world leading superpower pressures other nation states to "harmonize" their laws with the US:

CNN Article from 2000 "There are rather insane laws in the U.S. about reverse engineering, and so we sidestepped those by having the work done in Europe under the European Union fair-use laws," said Jeremy Allison, a software developer at VA Linux Systems Inc. in Sunnyvale, Calif. Allison co-authored Samba, a Windows file-serving program that allows Unix machines to serve file-and-print services to Windows clients. Allison said his team is forced to reverse engineer because Microsoft doesn't offer documentation of its proprietary protocols. But when the Samba team decoded the Microsoft domain controller protocol to allow Samba servers to interoperate with Windows NT, they made sure the work took place outside the U.S.

Re:say goodbye to samba

[julesh]

it's only a matter of time before the world leading superpower pressures other nation states to "harmonize" their laws with the US:

CNN Article from 2000 "There are rather insane laws in the U.S. about reverse engineering, and so we sidestepped those by having the work done in Europe under the European Union fair-use laws," said Jeremy Allison

The US can do many things with their economic muscle. But I suspect that the EU are beyond the reach of such intimidation, and the EU right to reverse engineer is an entrenched part of EU law now. I don't see it being changed for a long time to come.

Re:say goodbye to samba

[protect imagination]

i hope you're right, and the register is wrong (which it sometimes is)..

from an article dated jun-29-2003:

There's going to be a vote in the European Parliament on 1 September (originally today, Monday 30 June 2003) that will have enormous implications on the worldwide software market.

The vote will be on whether to adopt a report by its Legal Affairs and Internal Market Committee that recommends the rules on patenting of software be relaxed in line with existing laws in the US and Japan.

It looks as though, despite widespread and deep criticism, the report will be adopted. And this will probably mean a shift of power from small software companies and the open source community to large multi-national corporations.

--

note that there is already an example of microsoft using its patent of the ASF file format to force a reverse engineered feature to be removed from virtualdub software. you can read about it here.

Re:say goodbye to samba

[Abcd1234]

And what does that have to do with EU laws regarding reverse engineering? I mean, yeah, software patents bad, etc, etc, but what does that have to do with Samba? (And don't get started on what-ifs about Microsoft patenting SMB, Windows file sharing, etc...)

Re:Why prohibit? Because you're too stupid to prot

[Anonymous Coward]

What leads you to believe that hardware designs can't be protected? What do you think PS/2 was other than an attempt by IBM to re-proprietize the run-away PC architecture?

In 80 man hours?

[Anonymous Coward]

From the article:

'Bowers' lawyer countered that Baystate had two weeks in its development schedule to examine Bowers' software, giving the software vendor time to look at more than the user interface. "They had two weeks to reverse engineer his software," countered Bowers' lawyer, Frederic Meeker, of Banner and Witcoff, of Washington, D.C. "Two weeks is a long time -- that's a lot of looking."'

These guys obviously don't know anything about software or software engineers. Two weeks is barely enough time to do the project plan. It would take months to execute a serious reverse on a product like this.

Re:It's about time

[Anonymous Coward]

or if it was typed on a qwerty keyboard

New Names for Gears

[Anonymous Coward]

How about Walk, Trot, Canter and Gallop? Or would you get sued by a horse?

Re:It's about time

[MidnightBrewer]

Reverse engineering does not require that you look at the source code. To make reverse engineering legal, you specifically should *not* look at the source code. The idea originated with the original IBM chip clone, where basically an engineer with no prior affiliation with IBM products would feed information into the chip and document what came out; by dint of careful testing, they were able to reproduce the functions of the chip without actually knowing what the insides looked like.

It's good for end users of a particular product (in my case, 3D software), when the authors of your favorite software can at least play around with the competitor's software. As long as they're not cracking code, this ability to look at the competition doesn't guarantee that they'll be able to beat them out or even match them, but it does help them compete.

What's next? Are we going to start telling auto manufacturers that they can't look at each other's cars when they're driving down the road?

Ford gave us the car?

[Anonymous Coward]

My God! There I was thinking it was invented in Europe. It's amazing how many things turn out to have been invented by Americans all along. Remind me again - was it Edison who invented the wheel, or was that Elvis?

Re:Ford gave us the car?

[aerojad]

mass production-produced car. car in every home.

Re:Ford gave us the car?

[DavidTC]

Who the hell wants a car in their home?

Re:Ford gave us the car?

[ethereal]

A car in your home usually means your brakes are no good :)

Reverse engineering economically inefficient.

[Trozy]

One could argue that this is a good decision since reverse engineering is economically inefficient. A reverse engineer is expending time and effort to try and "work out" what some else has already done. When someone reverse engineers something they are imposing an (economic) externality on the creator, since notionally they are reducing the value of the initial product by using the creation to create a (possibly superior) supplementry product. A much better solution would be for the reverse engineer to pay for the creator for the orginal design (say half of the costs it would take to reverse engineer). This would yield the same final outcome, with less effort, and each party better off (in monetary terms). That said, this is kinda what the patent system is designed to do (disclose new design whilst granting a temporary monopoly). But the patent system has its problems, namely inflexible length of patent. So maybe reverse engineering is the lesser of two evils.

Re:Reverse engineering economically inefficient.

[rollingcalf]

It would be even more economically inefficient if reverse engineering were illegal. The reduced competition would increase monopoly powers, and monopolists are very economically inefficient.

Re:Reverse engineering economically inefficient.

[sploxx]

Please mod parent as insightful!

You can eat your cake and have it.

[minkwe]

If you want it secret don't sell it at all. It is like selling an apple to someone and the shrink-wrapped license says not to look at it while eating lest they find out what is so nice about it and try to get it from the tree by themselves.

Re:It's about time

[Anonymous Coward]

This ruling if widely upheld in the courts could
put Microsoft out of business. If they can't copy
good ideas from looking at source code, where are
those ideas going to come from?

Re:It's about time

[Anonymous Coward]

Reverse engineered my ass. Those Compaq engineers
lied there asses off in court. IBM's bios code was available to anyone who really desired to have it. THe hard part for them was making it look like they didnt copy it.

Re:It's about time

[gujo-odori]

Well, not *exactly* reverse-engineered. IBM actually published the IBM PC BIOS source code, so that people developing applications for the PC could know exactly what to expect from the BIOS. You weren't allowed to do anything with the source code other than look it, and under copyright law, having seen it would almost certainly preclude you from working on a competing BIOS project.

However, what earlier cloners such as Phoenix and Compaq did was to have two teams work on the cloning project. The first team looked at the source code and documented all of the system calls. The second team read that documentation and produced clean-room code that would behave the same way as the IBM BIOS. The second team never saw, of course, the IBM source code.

Re:It's about time

[bishopi]

What about for making things compatible with it, or for research? What if someone slaps a EULA on a virus, and then sues anti-virus researchers?

One wonders (and I'm not a DMCA know-it-all - my apologies) whether the scenario will arise where a virus writer slaps on sufficient "protections" to make circumventing the virus a breach of the act...... I can't wait to see the day that some of these half-baked laws come back to bite someone important on the behind.

Does anyone know if there's a provision for this sort of "circumvention"?

Ian

Fair Use

[Crazy Viking]

This is just another good argument for the US to adopt some sort of fair use legislation. Fair use in some countries include reverse engineering and copying copyrighted material for own use. For instance, in Norway those who have bought a copyrighted material have rights which cannot be limited by any license agreement. Some forms of reverse engineering are protected under this legislation.

When is the US going to start living up to its original ideals and protect the freedom of individuals? These days it sounds much more like the "Land of the Properly Set Up Free" to me!

my stuff

[oohp]

Since is *my* hardware and I paid for it, I should be allowed to reverse engineer it. So what if the competitiors reverse engineer your stuff? It only stimulates companies to do better stuff. Just embed everything into a monolithic structure if you want to protect your stuff. I'm not talking about huge integrated circuits, but the whole thing embeded into some kind of plastic/whatever mass. No need for a court decision here. No need for lawyers to collect more fees.

Re:It's about time

[Anonymous Coward]

Not to mention that IBM really didn't care. They were making a killing on licencing their patents on fundemental PC technology.

The CAFC is the problem.

[ahfoo]

The CAFC is like a phone home system in an MS Windows software package called tmp.dat.
You see the name "Court of Appeals of the Federal Circuit" and you assume, oh yeah that's part of our nations justice system. But it's an evil little fucker that got tacked on just a few decades ago by the administration of a vicious bastard named Ronny Raygun.
When people complain about the courts being pro-corporate or pro-patents or pro-copyrights, they're generally incorrect, but in the case of this court it's right on the money.
The CAFC was created by executive order and we damn well need to elect a president with the balls to get rid of it the same way.

Bleugh, I'm sick of the whole business

[Rogerborg]

Remember when development was about innovation rather than litigation?

I'm sick of it. I'm sick of having to pay IP lawyers to review everything I do. I'm sick of seeing farcical lawsuits over copied binaries (c.f. Blizzard versus bnetd), when any competent engineer knows that decompiling a binary gives you an incomprehensible, unmaintainable clusterfuck that you'd be insane to use (errors and all) rather than implementing your own solution. I'm sick of hearing about David versus Goliath confrontations as though we're all supposed to be rooting for David. And most of all I'm sick of reading mealy mouthed legalese arguing (for twelve years!) over the exact meaning and applicability of sub-paragraph 67b/6, rather than a court simply asking what's right.

Re:Why prohibit? Because you're too stupid to prot

[91degrees]

And that this is enforced by putting all hardware in mould (same stuff they use for ICs)?

That wouldn't work. I used to work for a microchip company. Apparently it's typical in the industry to take chips apart and look at how they work.

Non-news?

[Anonymous Coward]

The InfoWorld writer starts by saying "[a] U.S. Supreme Court decision could call into question a common practice" but then later goes on to state that "[l]ast week, the Supreme Court decided not to hear the accused software company's appeal."

Seems to me that the Supreme Court declining to hear a case is non-news. Interesting discussion, though.

Carry on.

Re:It's about time

[Anonymous Coward]

lolroflmaowtfbbq yuo seid 'M$'!!~

Re:It's about time

[Anonymous Coward]

Idea Theft? What the hell would that be? I'm just amazed that you even mention it, let alone use it in a serious context! Do you seriously believe that ideas can be stolen?

The content producers have done their job here, move along.

Re:Why prohibit? Because you're too stupid to prot

[Anonymous Coward]

>And that this is enforced by putting all hardware in mould (same stuff they use for ICs)?

Didn't work for the VideoCipher then, ain't gonna work today. ;-) But they're free to try...

Re:It's about time

[Max Romantschuk]

Idea Theft? What the hell would that be? I'm just amazed that you even mention it, let alone use it in a serious context! Do you seriously believe that ideas can be stolen?

I don't think an idea is property per say, but I would say that someone copying something you've created and then taking credit for your invention could be called idea theft. This would heavily depend on the circumstances though...

Ultimately it's all semantics, isn't it?

Poor journalism--nothing to see, move along.

[Mammothrept]

Infoworld's description of what the Supreme Court did not do is sloppy journalism. The Supreme Court didn't issue a decision in the case, it simply declined to hear it. Declining to hear a case has zero precedential value. In the 2001 term, the Court was asked to hear 7,924 cases and only heard arguments in 88 of them, resulting in signed opinions in a mere 76 cases. Those 76 are the only real decisions the Court made. The Infoworld story is probably accurate in it's prediction that software companies will probably be more aggressive in using EULAs to stop reverse engineering but the most that can be said is that the Supreme Court has neither endorsed nor prohibited what the U.S. Court of Appeals for the Federal Circuit did. The other Circuits are not bound by this decision.

Infoworld article lacks depth

[miu]

Better information available at techlaw

Re:It's about time

[nathanh]

Reverse engineering is nothing more than the common theft of intelectual property. When yo look at someone's compiled code, you are seeing that which you were not meant to see. There's a reason all these companies have NDA's. They don't want people to see their code. And then to have their competitor down the street disassemble the shipped product. Well, it's pure theft, and nothing more or less. The only reason the competitor could possibly have for dissassembling the binary code would be to copy it for their own benefit.

No! It's not theft. It's fraud!

No! It's not fraud. It's murder!

No! It's not murder. It's embezzlement!

Oh, sorry, I thought we were playing the "use the wrong word" game.

I'm going to go murder an MP3 or two before I embezzle Windows XP.

the problem restated:

[JW Troll]

the EULA is not actually a contract, which is a point missed by everybody here so far. Is there actually a binding legal agreement made by clicking on a button? Hell no. If my 4-year-old clicks on that button, is he bound to a contract? I think not. If I use that program after my kid installs it, am I bound to the terms of that EULA? Think again, people.

Pure and simple: the EULA is not an enforceable contract because there is no evidence of actual agreement between two parties. Of course, all you have to do is show me my signature and I'll take all the above back.

Whether the Baystate copiers, er, I mean coders actually copied the user interface is irrelevant here - sure that'd be wrong to most people, but that wasn't what this case is about. This case is about EULA violation.

Re:the problem restated:

[cbreaker]

> This case is about EULA violation.

If it's not enforcable, how did the plaintiff win?

I guess they needed you in the courtroom to tell the jury it wasn't enforcable since you didn't sign something.

From this point on, I guess verbal contracts are completely out the door too. Tell that to the thousands of people convicted on conspiracy charges each year.

Re:the problem restated:

[mpe]

Pure and simple: the EULA is not an enforceable contract because there is no evidence of actual agreement between two parties. Of course, all you have to do is show me my signature and I'll take all the above back.

Even if it was consider the case of software bought by corporation A, installed by a contractor from corporation B then used by a contractor from corporation C (or even a member of the public).

Re:the problem restated:

[Anonymous Coward]

... how did the plaintiff win?

Wait for the rematch. This thing smells funny. Also note that a verbal contract is an explicit agreement between two consenting parties, completely unlike the EULA; with the EULA, a click is required to install the software - a click which can be performed by anybody with a finger, not just those eligible to lawfully enter into contract with the clickwrap licence creator. Think about it.

Re:It's about time

[Rip!ey]

Reverse engineering is nothing more than the common theft of intelectual property.

Here in Australia, reverse engineering of software is actually my legal right.

The only reason the competitor could possibly have for dissassembling the binary code would be to copy it for their own benefit.

Absolutely. And to be honest, why not? Fixing your software bugs (because you won't) and improving the interoperability of my software (with yours) are definitely for my benefit.

In regard to the wider issue, the courts here in Australia would by no means automatically agree to the legality of an EULA that placed 'undue restrictions' on my common law right, especially when those restrictions can be seen to be anti-competative. In this particular case however, after having read the article and assuming that the information given was accurate, I think the American courts made the right decision. To be honest, this actually appears to be more an issue of software component theft (exact reproduction of errors in a UI?), than one of reverse engineering.

This is plain stupid.

[Anonymous Coward]

I'd like to see the car industry or the chemical industry going through a process like this.

This would mean that Apple, Motif, Microsoft and every company on the planet that makes a GUI has to pay royalties to Xerox???

What about monitors??? Or keyboards?? Or mouses???

In the end, everybody should build everything from scratch and make sure it doesn't look like the product from the other guy.

It's like "pay royalties or go Neanderthal". Because innovation are allways based on improving ideas from others, since the start of mankind.

Maybe Neanderthals should have made a license over clothing or something. This is so stupid.

Re:More about patents, less about reverse engineer

[Chalst]

I agree with this, and I think it is quite possible that the reason that the Supreme Court didn't want to hear this case is because it didn't provide a good test of the interesting law. My guess is that they would hear a similar case if the prosecutions case rested solely on violation of an EULA.

BTW, a few posters appear to think the DMCA provisions can be combined with this precedent to create very strong anti- reverse engineering safeguards. They shouldn't, since the DMCA is specifically worded to exclude reverse engineering.

Reverse Engineering?

[Craig Maloney]

Killing reverse engineering doesn't scare me half as much as giving validity to shrink-wrap licenses.

M&M/Mars candy license

By opening this package of M&M/Mars candy, you agree to the M&M/Mars candy license. If you do not agree, please take this package back to your retailer for a prompt refund. Violating the license will terminate your license to the product. Used product will be forcibly removed by our collection agency (Bubba) through the most convenient means possible.

The mind boggles...

The Supreme Court Didn't Decide Anything . . .

[werdna]

The case was decided in the Federal Circuit almost a year ago, when the Federal Circuit held (contrary to a Fifth Circuit Decision in the 80s) that shrink-wrap provisions precluding reverse engineering are enforceable. The Supreme Court simply turned down (as they do most of the cases that apply) Baystate's petition for them to hear the case, which doesn't mean anything other than they had other things to do this year.

We filed a brief in this case on behalf of IEEE-USA and various library associations. The brief lays out our view, at least, of the importance of the case and the consequences of it remaining the law, at least, perhaps, in the First Circuit.

Re:Please tell me that the case doesn't hinge on t

[photomic]

Two weeks is plenty of time for dogs to "make puppies." The bigger issue is how evolutionary changes in software will be stymied while lawyers plot the entire "family tree" of software development. It's sort of like the Human Genome Project. Once it's cracked, no one will be able to make a move without paying royalties to some obscure strand of digital DNA.

You refute yourself by your own words.

[Anonymous Coward]

'usually find errors'; That someone doesn't find and fix errors isn't proof of theft. Another angle is that you could rewrite a function with your own code that emulates another, thereby producing the same responses, the same bugs. A hardware example of this are AMD cpus; some bugs they fix, some they emulated. If they didn't have something more concrete than your argument, it was a bad ruling.

It's even worse

[darthtuttle]

First, the court already did the do, they already refused to hear it.

Second, this case isn't about reverse engineering, it's about contract law and copyright protection. While the issue on the surface was reverse engineering, the case was about allowing state contract law to overule the protections given to consumers in copyrights. Copyrights assign a number of rights to consumers. It was created so information would be shared. Once the information is published the publisher gets rights to the form of presentation (ie. a book) and the public gets to use the information presented. Reverse engineering is a way to understand the information given to the consumer. You are "reading" the "software". Apparently there are some books that if we read them we can't use that information. In fact, a publisher could publish a book, sell it in a shrink wrap, and place terms on what you can and can not do with the information in that book. By removing the shrinkwrap you agree to the terms!

Not that kind of errors...

[wirelessbuzzers]

If the errors are not bugs in the code, but rather illegal operations by the user, and the software gives the same message for them, that might not be theft. I wouldn't count, say, a "Scaling factors must be nonzero" error as theft.

On the other hand, a copied might be theft (ie infringement of copyright), depending on just how detailed those messages were that they copied.

Re:More about patents, less about reverse engineer

[scharkalvin]

This case was about a large company using unfair tactics to sink a smaller company. They locked one companies product out of the market through deals they made with distrubitors to sell only their own products and infringed on the patents of the smaller company (sound familiar Mr. Bill?). The EULA violation was only the icing on the cake. Nothing wrong with this case, right decision.

put MicroSoft out of business?

[peter303]

When have they had an original idea the past 25 years?

GUI Errors

[cait56]

A GUI Design involves specifying a set of pages, the information on each page, its arrangement, the buttons that can be clicked, and the resulting transitions.

You can reasonably speak of a GUI "error" if there are obvious flaws in the navigation between the different screen/pages. For example, if you cannot back out of the current step without cancelling the entire transaction. Or if the information on a screen does not fit within the window and the window lacks scroll bars. Or if a "more info" button leads to a screen that is either irrelevant, or which cannot return back to the original screen.

If these are the types of errors that actually occurred, and they were replicated, I would have to agree that it is very convincing that theft occurred. I just don't agree that a EULA has the right to forbid competitive research. Competitive research is good, it benefits consumers and should be encouraged. Not doing your own research and evaluation is sloppy.

Making the same mistakes is a strong indicator that no independent research or judgemetn was exercised. It might even be enough proof to satisfy me as a juror if there was no contrary evidence.

Baystate is playing for sympathy

[Anonymous Coward]

There seems to be a lot more to this case than shrink-wrapped EULA's.
This case does not seem to mean EULA's can take away all your rights. This seems to be more copyright and misrepresentation related. I do not know the details, but I'm guessing Baystate aquired Bowers program under false pretenses.

Re:It's about time

[usotsuki]

I call that "black box emulation". That's basically how I created the original version of Dapple.

-uso.

This is your rights

[Dillusionary]

This is your rights; this is your rights on drugs. Don't you love it people in the government have not clue on what this really means. Just a bunch of old farts sitting there signing anything they get money for. Got to love freedom.

It was more than just what he was drinking...

[mekkab]

It was what he was saying, doing, and Organizing.
He was pro-union and organized Coke merchandizers, so they sacked him.

So yes, on the surface, he was fired for drinking a pepsi on the job, but the reality is it goes deeper than that.

Can we Balance Fan Art and Leeching?

[JohnDenver]

Do you really think JKR should have to suffer a loss of sales when someone reads your miserable derivative and decides that they don't really like Harry Potter?

I think you bring up a good issue, but aren't cases of dilusion like this much better handled with trademark law?

Is is specifically intended to protect ideas, not a particular physical object in which they are captured.

Actually, copyright doesn't protect ideas or the medium but rather the specific expression or specific work, which much more narrow than protecting ideas.

A character and a setting are VERY specific intellectual property or expressions.

Like Barney(R), the purple dinosaur who is protected vigorously primarily with trademark law.

I think RMS made a great point when he said that talking about copyrights, patents, and trademarks under the unbrella of "Intellectual Property" is primarily designed to blur the very specific balance that exists between copyrights, patents, and trademarks.

Maybe it's me, but I don't see why we can't protect both the authenticity of an author and allow fans the freedom to write their own stories with conventional copyright and trademark laws?

Do we really need these new copyright laws, or are we just being scammed by the people holding the "Intellectual Property" umbrella?

Re:Can we Balance Fan Art and Leeching?

[Twylite]

I think you bring up a good issue, but aren't cases of dilusion like this much better handled with trademark law?

As I've pointed out in other comments, trademark law does not protect your character's personality, quirks, or any distinguishing feature that makes him/her valuable. Trademark law only protects the character's name.

Actually, copyright doesn't protect ideas or the medium but rather the specific expression or specific work, which much more narrow than protecting ideas.

Copyright law it phrased as the protection of a specific expression of an idea, and encompasses both idea and expression. A work could infringe on a copyright if it is substantively similar, even though it may use different names and slightly varied descriptions.

Like Barney(R), the purple dinosaur who is protected vigorously primarily with trademark law.

Trademark law is a more powerful tool than copyright law, because it is easier to demonstrate infringement (and damage). But the trademark in question doesn't extend to cover the purple dinosaur itself ... just the name.

I think RMS made a great point when he said that talking about copyrights, patents, and trademarks under the unbrella of "Intellectual Property" is primarily designed to blur the very specific balance that exists between copyrights, patents, and trademarks.

A very specific balance with very large grey areas. In general a patent covers function, copyright covers form, and trademark covers names. But where US law will allow patenting of a novel GUI idiom/concept, other legal systems may not accept a patent, and protection will be afforded by graphic design or even copyright law.

Maybe it's me, but I don't see why we can't protect both the authenticity of an author and allow fans the freedom to write their own stories with conventional copyright and trademark laws?

The story in question is a judgement (an interpretation of the law), not a new law. Existing law quite clearly disallows derivative works, including many forms of "fan fiction". My other comments go into more depth on this. Fan fiction that uses core characters (in particular) will be a copyright infringement!

The problem is to strike a balance between letting the author create and profit from an idea (without third parties, including fanfic authors, possibly detracting from that idea or drawing attention to their works instead), and allowing that work to be derived and eventually enter the public domain in a timely fashion.

All right!!!!

[gr8_phk]

That would put Microsoft out of business!

Hey! It's okay!

[Pig Hogger]

If the yankees are stupid enough to put themselves out of the high-technology field by driving the developpment outside of the USA, so be it!

After all, nowhere it is said that idiot people should be allowed to have their cake and eat it too...

Re:It's about time

[Anonymous Coward]

If you paint a fence and I say that I painted it, did I steal the fence or the paint.

"At Risk"...

[Jasin Natael]

So, to play devil's advocate, is it more wrong for:

• A Large Company with an installed userbase to steal a startup's product and integrate it with their own
  -or-
• A smalller company to take a big company's product and reproduce it to challenge them?

I think we'll all agree that, while there is little legal difference, the former case is much more ire-raising than the latter. Why? Because the little guy stands to lose, in relative terms, a lot more. As the law concerns itself, though, this is crap. The judge has obviously taken the moral high ground, but in doing so with such faulty logic, has opened the door for a grave number of misdeeds. If he wants to protect the little guy, maybe provisions could be made to define and protect product designers "at risk"...

I think that this case should have been more about illegal anticompetitive practices and inappropriate theft of trade secrets, (maybe) patent infringement. I don't know what to call it, but they should be shot through the forehead for refusing to hire the guy and then stealing his ideas when he took out a second mortgage to write his software. Anyway, the judge's logic is abhorrent. I object to the concept of shrink-wrap EULA's. Why shouldn't we have real, 'signed' contracts? The shrink-wrap license should say something like,

"By opening this package and installing this software, you agree that you have absolutely no rights to the software herein until you have agreed to the EULA contained herein and/or included electronically with the software. These include, but are not limited to, publishing benchmarks and graphical depictions of the product ("Screenshots"), and publishing/distributing materials produced through or by the use of the Product. After an evaluation period of 5 (five) days of active use, you will be required to accept or reject the terms of this software's EULA by electronically transmitting or mailing a personally identifiable signature to the company. Should you reject the EULA, the software will be automatically removed from your system. A refund will be provided to you, minus packaging and duplication costs ($X.XX). Thank you for trying our software."

Yes, it could potentially be more restrictive than current EULA's, but at least it'd be straightforward and honest. After all, if the gov't is going to say "anything goes" for EULA's anyway, I'd rather have a chance not to agree. And a way to prove that I did/didn't. --Jasin Natael

Re:"At Risk"...

[cait56]

There are major public interest factors that have to be considered.

• At some point a dominant solution shifts from being a solution to a problem, to becoming part of the definition of the problem. Hence, I do not believe the market would benefit by allowing Intel to have monopoly rights to the x86 instruction set.
• Once an infrastructure has grown up around a solution, such as compilers for a machine instruction set or a large user community that knows how to use a specific GUI, allowing ownership of that interface to continue is granting a monopoly over what is now a new market. Being able to grow that market one round strikes me as fair, and it should be enough of a reward. Being able to keep all of your customers until you aggravate them enough to justify retraining staff strikes me as an unfair advantage.
• The damage done to a dominant provided that is copied by smaller companies is minor compared to the damage down to a small upstart who has their entire advantage stolen by a large competitor.
• License agreements that prohibit informed discussion by consumer's about the quality of products would clearly be against the public interest. I doubt any court would uphold a contract that prevented a wide variety of people who did not have access to naturally confidential information from sharing basic reviews of a product's functionality.

But I agree with your fundamental analysis. The judge saw an injustice, and wanted to find a solution somehow.

Why does the Supreme Court always get Bowers wrong

[Anonymous Coward]

First Bowers v. Hardwick, which was reversed last week after 18 years (yea to sodomy!!!).

Now Bowers v. Baystate Technologies, which they decided not to review.

Maybe in 2021 they will reverse it.

Re:It's about time

[Anonymous Coward]

That's called Spyware, not viruses or malware.

Kill this meme

[fizbin]

This (the idea that the in-memory copy of a program made as an ordinary and essential step in using the program constitutes an action prohibited under copyright law unless you agree to a license from the publisher) is a seriously harmful meme, and as long as people accept it as true companies will be able to put any language they want in their EULA's and everyone will just shrug and say "well, that's the way it goes."

The thing is, this hasn't been true at the very least since 1987, and whether or not it was true before then is something that was never completely settled. (There was some thinking that the courts were leaning towards expanding fair use to cover this)

Barring the anti-circumvention provisions of the DMCA, you are not a criminal if you use a copy of a program lawfully obtained without agreeing to a license from the publisher. (Ever notice how the Gnu GPL very specifically does not impose any restrictions on use at all, but only on copying and redistribution? This is one of the reasons.)

Also, ever notice how most EULAs gratiously let you make a backup copy? You were already allowed to do that, before you agreed to the EULA.

The relevant piece of US law is in the copyright code, section 117 (a). It's readable online.

Re:Kill this meme

[bnenning]

Thank you. I've been saying this for a while, even to the point of having 17 USC 117 bookmarked. This is why almost every EULA out there should be ruled unenforceable due to lack of consideration.

Small Question

[Daimaou]

So can WordPerfect now sue Microsoft for stealing its Shadow-Cursors, etc.? That seems kind of dumb to me.

"Features" replicated? Re:Errors replicated?

[jellybear]

Maybe those weren't errors. Maybe they were "features".

Umm... You CAN patent algebraic equations

[JohnDenver]

Patenting things which are fundamental *atoms* of information technology should not be allowed. It would be like patenting algebra or the number pi.

Of course, because patenting an algebraic function is just silly. Right?

Let's get this straight. Software can now be "protected" by copyright, patents, and arbitrary EULAs, but despite just being an advanced mathematical notation, it's not really considered speach because it can have a functional aspect?

Re:More about patents, less about reverse engineer

[BigBadBri]

How are there 'trade secrets' in released binaries?

If the binaries run on a processor, then the 'trade secrets' are in fact public knowledge (they may be in machine code, which makes them more obscure, but they have been shipped as part of the product, and are therefore public).

Trade secrets, as they apply in most patents, relate to secrets involved in producing the final product, not to properties of the product that may be revealed or inferred through inspection.

This is yet another reason why the concept of the software patent is inherently absurd, and why it is time for technically competent people to sit down with some smart lawyers to devise a sensible framework for the protection of software.

I'm not against people being rewarded for their efforts, but the current regime is becoming too ludicrous to have any respect, respect being fundamental to the acceptance of law.

read the decision: reverse engineering important

[brlewis]

YANAL. IANAL. Yet we can still read the court decision to address some of our curiosity. You'll see that the EULA issue is, in fact, important.

Where patent enters into it is the possibility that the US Supreme Court declined to hear the case because it touches on software patents. The latest US Supreme Court case (Diamond v. Diehr, 1981), reaffirmed that software is not patentable. Lower court rulings have boldy contradicted this ruling, and the Supreme Court hasn't been willing to face up to the politically messy issue. Perhaps that's why they declined to hear this case, despite its sweeping implications. See Justice Dyk's dissent for a scary description of those implications.

Re:It's about time

[istartedi]

Show me how they will no longer be able to manufacture this motherboard if I made duplicates

Profit margin before duplication? Positive. Profit margin after clones enter the market? Negative. The company goes out of business.

No, it doesn't happen often, but it does happen.

However, A smart company realizes that even when protected by IP laws, IP is still perishable due to perfectly legal causes. They should plan for it.

Two examples of companies that failed to plan for the expected devaluation of IP and suffered: Xerox and Polaroid.

Now, I'm not arguing that Xerox should still have a patent. I'm just saying that companies that are playing by the rules shouldn't have their work stolen and be forced into a commodity market before their time. Remember, this is a two-way street. Eldred felt cheated because copyright was extended. This company feels cheated because copyright is being shortened.

Besides, you are just whipping an old dead horse here. See my previous post on this matter

Not allowed to look at competitor's software?

[Arpie]

Sheesh, does that mean it is illegal to even look at a competitor's software's interface or web site?

For example, suppose you have used Paypal and decide you can create a better service. If their EULA says you cannot reverse engineer their software, they can sue you? Just because you have used/ looked at their site?

um, eh, it solve the problem of sorting

[Anonymous Coward]

lists of strings.

Re:read the decision: reverse engineering importan

[mpthompson]

I stand corrected. Thanks for providing the link to the court decision to clarify what was ambiguous in the original article.

It seems that although the court does affirm the right to reverse engineer products under the Copyright Act, this right can be waived within the context of a freely entered private contract such as the EULA.

The contractual aspect of the case did seem to play a major role in the overall decision and in awarding damages.

Re:It's about time

[shepd]

>Profit margin before duplication? Positive. Profit margin after clones enter the market? Negative. The company goes out of business.

Yes, but you can't steal something you never had to begin with.

Unless users are putting deposits on future sales of product, and the money is stolen by the theif (remember, according to the definition: "every part of the property stolen must be ... at least momentarily, in the complete possession of the thief.") then it's still not theft.

There's just no way to fit the idea of unrealized profits into the idea of theft without time machines, or crazy deposit schemes (in which case it becomes robbery anyways), and I don't want to get into that... ;-)

>However, A smart company realizes that even when protected by IP laws, IP is still perishable due to perfectly legal causes. They should plan for it.

I agree. Open sourcing it and finding a business plan to support that is often the best way -- that way at no point do you even need to consider someone else pirating your software in any fashion. It wasn't an option to begin with. But that's just my idea, and I know the whole open source + profits route is paved with the bodies of failed corporations.

>See my previous post on this matter

Well, if you insist...

>>Yeah, and if I cheat on my taxes they can lock me up for "tax evasion"; but they d***ed well better not acuse me of stealing. That just wouldn't be fair.

I think you'd be surprised to find a lot (perhaps even a majority) of people don't consider tax evasion theft, unless the amount of tax "evaded" is higher than the amount already paid in that person's lifetime (ie: Don't pay house taxes a couple of years, fine -- run a gifting club, not fine). In fact, a lot of libertarians, such as myself, consider the current level of taxes virtual theft (but not real theft!) by the government in and of itself.

>>I hereby move that the Open Source and Free Software movements be combined and reorganized as The Society for Pointless Debates Revolving Around Semantics and Nomenclature or SPDRASN.

You can argue semantics, but it's only been recently that the dictionary has gone to such painstaking lengths to correct people on what theft really means. It's hardly semantics when they devote entire paragraphs to ensuring people get it right. I, for one, respect dictionary definitions for words, esepecially when they expound on a topic to the level they have for the word "theft".

Re:It's about time

[istartedi]

I think you'd be surprised to find a lot (perhaps even a majority) of people don't consider tax evasion theft

I came really close to just giving up on you here...

You can argue semantics, but it's only been recently that the dictionary has gone to such painstaking lengths to correct people on what theft really means

I call b***s***. Look me straight in the eye and tell me you've got several dictionaries spanning a significant period of time, and that you've compared the defintions of "theft" in all of them.

Even if you have done that, you've missed the point.

Dictionaries define words about as well as lawmakers define morality. If the dictionary authors have indeed "refined" the meaning of theft, it could very well be due to the prevailing atmosphere of distaste for the concept of intellectual property that now prevails in certain academic circles. Look me straight in the eye and tell me that such an author is any more ethical than a politician who takes money from Disney.

All of this arguing over the language is nothing more than a political battle. The theory goes like this: win the language, win the people.

First, nobody has ever proved that redefining a word can win a political battle. Whenever people try to do that in a really egregious way, there is no shortage of people who point it out. Second, when people discredit the concept of intellectual property, what they are really saying is "I want your intellectual property". Finally, whether property law is the basis for IP law or not is irrelevant.

Why? Well, we mentioned taxes, right? What makes you think that IP laws based in property law would be any less subject to taxation and/or condemnation for the public benefit, just as real estate, liquor, gasoline, cars and a host of other goods are.

Of course, I realize such a tax wouldn't look right on your Libertarian balance sheet; but that's the problem with Libertarianism to begin with. It reduces everything to a formula, and then tries to make the real world fit the formula. The world is not that simple.

Oh, and one other thing. To be consistant in your view, you should assert that theft of GPL'ed software isn't theft either, and you should be sure to correct anybody who says it's theft. You have been doing that, haven't you?

Re:It's about time

[shepd]

>Look me straight in the eye and tell me you've got several dictionaries spanning a significant period of time, and that you've compared the defintions of "theft" in all of them.

Is a few hundred years ok? Seems like a significant period of time, considering it covers the time span of all major revisions of copyright law (including having none for many countries).

[if you're wondering where I got most of these (apart from dictionary.com), check here]

1913's webster (available on www.everything2.com):

Theft (?), n. [OE. thefte, AS. i'ef[eth]e, f[eth]e, eof[eth]e. See Thief.]

1. Law The act of stealing; specifically, the felonious taking and removing of personal property, with an intent to deprive the rightful owner of the same; larceny.
To constitute theft there must be a taking without the owner's consent, and it must be unlawful or felonious; every part of the property stolen must be removed, however slightly, from its former position; and it must be, at least momentarily, in the complete possession of the thief. See Larceny, and the Note under Robbery.

2. The thing stolen.

[R.] If the theft be certainly found in his hand alive, . . . he shall restore double. Ex. xxii. 4.

There's no need to quote the current webster's -- it hasn't changed.

The American Heritage Dictionary, whose definition sucks and requires a recursive search (ho hum).

theft ( P ) Pronunciation Key (thft) n.
1. The act or an instance of stealing; larceny.
2. Obsolete. Something stolen.

larceny ( P ) Pronunciation Key (lärs-n)
n. pl. larcenies The unlawful taking and removing of another's personal property with the intent of permanently depriving the owner; theft.

Merriam Webster (I'd do the OED, but I'm too lazy to type it in from the book, this should satisfy anyone but a kook):

Main Entry: theft
Pronunciation: 'theft
Function: noun
Etymology: Middle English thiefthe, from Old English thIefth; akin to Old English thEof thief
Date: before 12th century
1 a : the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it b : an unlawful taking (as by embezzlement or burglary) of property
2 obsolete : something stolen
3 : a stolen base in baseball

1783 webster's American Spelling book (no definition for theft, sorry, this is the closest to it, but it clearly shows in 1783 the definition would have been the same)

Steal, to take away without liberty

Cambridge Dictionary of American English

theft noun [C/U] the act of taking something that belongs to someone else and keeping it; stealing car theft

1891 encyclopedia britannica

THEFT, the act of thieving or stealing. In English legal usage the practice is to call this act by its Norman-French name of "larceny," but properly theft is a wider term including other forms of wrongful deprivation of the property of another (see LARCENY).

[I'm starting to have fun here]

Webster's 1828 Dictionary

THEFT, n. The act of stealing. In law, the private, unlawful, felonious taking of another person's goods or movables, with an intent to steal them. To constitute theft, the taking must be in private or without the owner's knowledge, and it must be unlawful or felonious, that is, it must be with a design to deprive the owner of his property privately and against his will. Theft differs from robbery, as the latter is a violent taking from the person, and of course not private.

1. The thing stolen. Ex.22.

Oxford Paperback Dictionary and Thesauraus

theft /eft/ noun act of stealing.

burglary, larceny, pilfering, robbery, stealing, thievery.

larceny /"l:sn/ noun (plural -ies) theft of personal property. la

Ummm....duh?

[fishexe]

So let me get this straight...it's against the law to violate a contract you've agreed to? Holy shit!!! Man, is the world going to hell now!

No seriously, this doesn't change anything. There are absolutely no new developments in this case. Reverse engineering still isn't illegal per se, but violating an EULA is. Just like always. Go figure.

Re:It's about time

[istartedi]

I made you post so much crap that Slashdot put forth the infamous "read the rest of this comment" link.

I win.

Re:It's about time

[shepd]

Wow, if all it takes to win is typing less then:

I win.

Re:It's about time

[istartedi]

IW