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

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.

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?

[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?

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.

[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.

[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.

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: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

[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...

[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...

[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.)

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

[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

[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

[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: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.

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.

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

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

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.

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: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

[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.

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: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.

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...

[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.

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.

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

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.

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.

[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.

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: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.

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.

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?

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: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.

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.

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.

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.

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.

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.

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!

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?