Reverse engineering is not illegal, but understanding how to do it by the law can certainly be confusing. There are plenty of reverse engineering patent infringement laws and regulations that must be adhered to to ensure an ethical methodology. IP does not prevent the dismantling of other’s inventions in any domain like software, mechanical, chemical, or mechanical, so long as it is carried out in accordance with the laws. In this article, we understand the legal guidelines governing the reverse engineering process.
There are five legal doctrines that govern reverse engineering, namely:
The Section 103(f) of the Digital Millennium Copyright Act (17 U.S.C. § 1201 (f)) states that:
In this subsection, the term “interoperability” refers to the capacity of computer programs to exchange information and utilize it amongst themselves.
Thus, the Copyright Act strikes a balance between the exclusive privileges of the copyright owner and the rights of others to make technological progress. The exemptions in the law grant permissions to make “essential” steps and archival copies. It, therefore, allows reverse engineering if it is deemed necessary to achieve ‘interoperability’. Reverse engineering, especially in the case of software, can help gain better insight into its workings and detect and fix bugs and other malware.
In the Kewanee Oil Co. v. Bicron Corp. case, the United States Supreme Court ruled that trade secret laws may not rule out “discovery by fair and honest means,” such as reverse engineering.
Again, in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., the SC ruled in favor of reverse engineering when it declared that the “public at large remained free to discover and exploit the trade secret through reverse engineering of products in the public domain or by independent creation.”
In states like Texas and California, reverse engineering is permitted by law. But reverse engineering that violates a non-disclosure agreement (NDA) is considered embezzlement. So, if you are pursuing a technology that is subject to contractual restrictions, then it is best to seek the advice of a lawyer before pursuing it further.
The DMCA, bought into force in 1998, implements two 1996 World Intellectual Property Organization (WIPO) treaties, namely, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
Section 103(f) of the Digital Millennium Copyright Act (17 U.S.C. § 1201 (f)) allows a person in legal possession of a program to reverse engineer it if it is necessary to achieve ‘interoperability’. This offers protection to professionals who wish to reverse engineer products solely for research purposes. However, other than that, it makes it illegal to circumvent controls like authentication handshakes, code signing, code obfuscation, and protocol encryption that block access to copyrighted information. Under this law, it is also illegal to manufacture or distribute tools that may help circumvent copyright controls.
Software applications are protected under different types of contract laws based on their domain.
End User License Agreement (EULA) is the most common contract contained in software applications. This is a legal contract between the software developer and the end-user, which contains various clauses that the user must accept before using the software. Also known as ‘click through’ agreements, EULAs often include “no reverse engineering” clauses that prohibit users from copying or reverse-engineering the product.
Terms of Service notice (TOS) refers to a legal agreement between a service provider and a person who wants to use that service. It outlines the user rules, restrictions, and prohibited behaviors, along with the business’s liability limitations, property rights, and dispute resolutions. ToS are commonly found in web browsers, e-commerce, web search engines, social media, etc., and act as a legally binding contract that is required to access the services. Any inclusions of a reverse engineering clause will vary based on the nature of the product.
Non-Disclosure Agreement (NDA) is a mutual agreement between parties to not disclose confidential information that they have been privy to. They are also known as Confidentiality Agreements (CAs), Confidential Disclosure Agreements (CDAs), Proprietary Information Agreements (PIAs), or Secrecy Agreements (SAs) and are one of the most common ways of protecting trade secrets.
It is good practice to study the fine print of these contracts in detail, before going ahead with the reverse engineering process. An experienced attorney can help identify limiting clauses present in such agreements.
Per the Bureau of Justice (BJA) website, the ECPA protects wire, oral, and electronic communications while those communications are being made, are in transit, and when they are stored on computers. This rule pertains to email, phone calls, and electronically stored data.
Since packets are communications, an inspection of a network packet may involve a violation of the ECPA. In case, someone wants to access this information, it can be obtained from providers with a subpoena. More confidential information may need a special court order or a search warrant. The exception to the Act as provided in Title I states that “In the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service” and for “persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act (FISA) of 1978.” 18 U.S.C. § 2511.
Since the ECPA is a complicated law, seeking legal assistance before proceeding further is highly recommended to avoid getting on the wrong side of the law.
The following lawsuits have championed the cause of reverse engineering by adhering to Section 103(f) of the Digital Millennium Copyright Act (DMCA), which states that there is no cross-questioning on the legality of reverse engineering and circumvention of protection to achieve interoperability between computer programs.
Since then, the courts have ruled favorably for responsible reverse engineering in many other cases such as Sony Computer Entertainment, Inc. v. Connectix Corp, Lotus Dev. Corp. v. Borland Int’l, Inc., and Lexmark Int’l Inc. v. Static Control Components.
Any attempt at reverse engineering must adhere to the guidelines provided by the laws discussed above. So long as you are working within the limits, reverse engineering can serve as a useful means of appropriating knowledge and furthering technological advancement
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