Software Scan

The President's Column

When is reverse engineering OK? In my many years in engineering I've heard various explanations, some of which sounded a bit, let's say like suspicious rationalization. So in the Scanning IP section I describe when reverse engineering of software can be done without violating the copyright.

In the Tales From the Trenches section I talk about one of my many interesting IP cases. At least I think they're interesting. There are always a lot of fascinating people involved in litigation, and they're not always the parties to the action. Lawyers, experts, judges, and juries also provide a lot of the bizarreness that can occur in court and behind the scenes.

Our last CodeSuite Certification Training course was a great success. Our next one will be held on October 2. You can take it at our headquarters in Cupertino, California, or you can take it over the Web, but either way you need to sign up here by September 18 at the latest. I look forward to seeing you there—we actually have a good time while learning important skills.

Send me your comments and critiques. I'm always interested in hearing from you.

Regards,


Bob Zeidman
President, SAFE Corporation

Scanning IP

When is Reverse Engineering OK?

Copyrights protect expressions of ideas, but not the ideas themselves. Anyone can write about two young lovers from different families and different backgrounds and not fear getting sued by the estates of William Shakespeare or Arthur Laurents or anyone who writes daytime TV movies. It is for this reason, that software can be reverse engineered to learn the ideas it embodies without violating the copyright, as long as the code is not copied and used commercially. The first lawsuit verdict that enforced this idea was Atari Games v. Nintendo in September 1992.

Nintendo tightly controlled access to its successful NES video game system and did not release the specifications for creating a game cartridge for the system. In order to produce a game for the system, companies had to pay a license fee to Nintendo and had to agree not to produce the licensed game for any other game system for two years. Incorporated into the Nintendo NES system was a computer program called 10NES that checked whether a particular game had been licensed. If not, the game was not allowed to run. Atari reverse engineered the 10NES program and created its own program called Rabbit for bypassing 10NES. Atari sued Nintendo for, among other things, unfair competitions and monopolistic practices. Nintendo countersued for, among other things, copyright infringement. The U.S. Court of Appeals ruled that the reverse engineering was perfectly legal. It also ruled that Atari infringed on Nintendo's copyright when Atari created its own program based on Nintendo's program. The decision by Judge Randall Rader reads as follows:

The district court assumed that reverse engineering (intermediate copying) was copyright infringement… This court disagrees. Atari did not violate Nintendo's copyright by deprocessing computer chips in Atari's rightful possession. Atari could lawfully deprocess Nintendo's 10NES chips to learn their unprotected ideas and processes. This fair use did not give Atari more than the right to understand the 10NES program and to distinguish the protected from the unprotected elements of the 10NES program. Any copying beyond that necessary to understand the 10NES program was infringement. Atari could not use reverse engineering as an excuse to exploit commercially or otherwise misappropriate protected expression.

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Tales From the Trenches

The Case of the Insane Expert

One time in a copyright/trade secret litigation, a colleague and friend was the expert for the opposing party. I had told the counsel for my party that my friend was pretty sharp and that they shouldn't underestimate him. When the lawyers returned from deposing him, they called me. "Does you friend... have problems?" they asked

"What kind of problems?"

"Psychological problems?"

"I don't think so," I replied. They explained that when they asked him about one set of code he replied about a different set of code. When they pointed to a particular file, he pulled out a printout of a different file. When they asked him to list his client's trade secrets, he went off on a rant about trade secrets. When they asked him about his technical knowledge he got angry and slammed his fist on the table.

I thought about it for a minute. As far as I know he's rational, and smart. So it occurred to me what he was doing—not something I would do, but an interesting strategy. His company was a big company suing a little company that was quickly becoming a major competitor in a very important niche. The big company seemed to have little evidence of any wrongdoing. My colleague knew that and must have decided that the only way to support his client, without lying, was to "distract" the attorneys and end up saying nothing of relevance.

Was this a good strategy? I don't know for sure. The large company almost depleted my client's capital. But my client, who had done nothing wrong, survived. There was eventually a settlement agreement. And my client has become a strong player in this industry.