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Home  Reverse Engineering
Reverse Engineering
“Reverse engineering” is an issue with UCITA that may seem somewhat removed from library concerns. However, it has raised great consternation in other circles, most notably science and engineering education and among some entrepreneurial high tech firms. Thus, it is a core issue in the licensing debate and will be key to many parties in any anti-UCITA coalitions. So, it is important for us to understand that it is an issue and why it is of concern, and so we will discuss it briefly in this lesson.
Reverse engineering is the practice of studying a finished product, a physical device or a software package, in order to learn something about how it works or how it was manufactured. Traditionally, it is an accepted, legitimate practice, both in the competitive marketplace and in technical education.
In intellectual property law, reverse engineering is an element of the balance between the rights of creators to exploit their creation and the rights of society to benefit broadly from these innovations. The principle is that society must be able to learn from, as well as enjoy the benefits of a new invention, because it is that learning that leads ultimately to even more innovation. It is especially critical for a society and economy, like that of the U.S., which is so dependent on high technology, rapid innovation, research, and education.
Of course, intellectual property rights remain in force. Reverse engineering a device or software package does not relieve one of the need to respect the patents or copyrights that may apply to it. Someone who markets a software package based on reverse engineering a competitor’s product may still be liable for infringement.
We said that reverse engineering was not central to library concerns, however it is not entirely irrelevant or alien to libraries. For instance, libraries are under increasing pressure to use filters to screen Internet access. Librarians are quite properly skeptical of the ability of filters to screen illegal content without screening out constitutionally protected speech. Librarians or researchers could very well wish to reverse engineer a commercial filter package to determine how it works and what it actually screens. Furthermore, in general, to the extent that reverse engineering continues to advance research and education that helps us develop and use improved search engines, information management tools, or archival systems, libraries will also benefit substantially.
More broadly, possible groups concerned about reverse engineering include engineering and scientific societies, higher education, computer and information engineering educators and researchers, and small entrepreneurial high tech firms.
Many companies are, for obvious reasons, less than thrilled at the idea that competitors, or, for that matter, curious individuals, can disassemble their products and discover hidden techniques and processes that lend them a competitive advantage in the marketplace. So, it is not surprising that companies that offer software and information services see licensing as a method for limiting the practice. (As we will see below, this practice can work its way into hardware devices as well, in puzzling ways.)
Interestingly enough, though, licensing restrictions on reverse engineering can, though the perverse logic of UCITA, have even broader negative impact by restricting reverse engineering of physical, tangible objects. Just one example:
Some firms have been distributing through the mail for free a new piece of hardware, an input device for personal computers designed for e-commerce applications. The device comes with a CD containing software that needs to be installed on a computer in order to use the device. The click-on license that accompanies the software driver is instructive.
Among many other things, it says:
“…The [xxx] reader is only on loan to you from [yyy] and may be recalled at any time. … your possession or control of the [xxx] reader does not transfer any right, title, or interest to you in the [xxx] reader. … you may not reverse engineer, disassemble, modify, rent, lease, loan, sublicense, or distribute the [xxx] reader.”
If enforced (or enforceable), this interesting clause raises several issues, two of which are of particular concern for this discussion.
? An unsolicited product sent to someone by mail is usually considered to be the property of the recipient. This principle is at least in part intended to protect consumers from fraud and misrepresentation. So, at first glance, the readers would appear to belong to recipients who would, indeed, be free to reverse engineer, disassemble, modify, loan etc. to their heart’s delight. On installing the driver software, however, ownership could revert to the sender and recipient rights would be severely limited. Until the decision is made to use it, then, the ownership of the device, itself, seems to be in a highly uncertain, ambiguous state.
? Secondly, not only does this license attempt to bar reverse engineering of the software, itself, but it extends that ban on reverse engineering to a physical device which the software operates.
Thus, in one paragraph, the license undermines (or at least throws into question) long-standing legal protections for consumers along with basic requirements for disclosure and reverse engineering in intellectual property law. Furthermore, the license stretches far beyond terms governing the use of the information product it is attached to (the device driver software), and covers terms of ownership and use of a physical device, itself.
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