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

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: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: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.

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

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.

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]

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

[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.

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.