Subject: Re: decompilation
From: <kmself@ix.netcom.com>
Date: Tue, 11 Jan 2000 00:36:19 -0800
Tue, 11 Jan 2000 00:36:19 -0800
On Mon, Jan 10, 2000 at 01:32:43PM -0500, Kragen Sitaker wrote:
> Bernard Lang writes:
> >   Most software inventions cannot be kept secret, since the software
> > has to be distributed, and can always be decompiled in due time... and
> > always is when relevant (few companies will respect the law in that
> > respect, even now).
> 
> At least in the US, and I believe in the EU, and now in Australia, the
> law explicitly permits decompilation to learn how software works, at
> least for purposes of interoperability.  Respecting the law in that
> respect would consist of not attempting to deceive one's customers into
> believing they do not have that right.

I'm not sure how the DMCA and UCITA will collaborate to change this
situation. [1]

The relevant DMCA code is 17 USC 1201(a) and (f).

1201(a) prohibits circumvention of copyright protection system:

   No persona shall circumvent a technological measure that effectively
   controls access to a work protected under this title.

1201(f) provides and out for reverse engineering.  But it's a narrow
needle through which the camel must pass: [2]

   Notwithstanding the provisions of (a)(1)(A), a person who has
   lawfully obtained the right to use a copy of a computer program may
   circumvent a technological measure that effectively controls access
   to a particular portion of that program for the sole purpose of
   identifying and analyzing those elements of the program that are
   necessary to achieve interoperability of an independently created
   computer program with other programs, and that have not previously
   been readily available to the person engaging in the cirumvention, to
   the extent that any such acts of identification and analysis do not
   constitute infringement under this title.

   
Note the language:

  - "a person who has lawfully obtained the right to use a copy"

  - "for the sole purpose of [identifying elements] necessary to achieve
    interoperability of an independently created computer program"


I'm less familiar with the proposed UCITA language than with copyright
law (and I'm not a lawyer), but some reads I've had of UCITA raise
questions in my mind as to what rights are granted by a EULA, and if
those rights are sufficiently broad to meet the first requirement of
1201(f).  Even should they be, it appears that the second requirement
does not allow random tinkering with source code, but requires that any
such tinkering (and the prerequisite copy control circumvention) be
performed for the express purpose of getting some other piece of
software, independently created, to work.

This is a far, far, far cry from the 107 fair use exemptions of
copyright:

    Notwithstanding the provisions of sections 106 and 106A, the fairr
    use of a copyrighted work, including such use by reproduction in
    copies or phonorecords or by any other means specified by that
    section, for purposes such as criticism, comment, news reporting,
    teaching (including multiple copies for classroom use), scholarship,
    or research, is not an infringement of cpyright.

[The statute continues to list guidelines].

That is a long list.  1201(f) reduces this to a single, very specific
application, *only* if a precondition is granted, which may be taken
away by contractural obligations to a EULA.

I'd say protection of reverse engineering is weaker than you might
suspect.  For anything which is *not* a computer program, there appears
to be no right to copy control circumvention.  In the past, the courts
have ruled that de facto deprivation of 17 USC 107 fair use rights is
unconstitutional (Sega v. Accolade).   Pamela Samuelson writes on this
judgement: [4]

    The court was disturbed by the implications of Sega's argument,
    observing that "[i]f disassembly of copyrighted object code is
    per se an unfair use, the owner of the copyright gains a de facto
    monopoly over the functional aspects of his work-aspects that were
    expressly denied copyright protection by Congress."[137] To enjoy
    a lawful monopoly over the idea or functional principle underlying
    a work, said the court, "the creator of the work must satisfy the
    more stringent standards imposed by the patent laws."[138]



While I'd suspect that this precendent might lead to an overturning of
1201(a), I'm not hopeful.  It will be interesting to see this put to
the test.


> -- 
> <kragen@pobox.com>       Kragen Sitaker     <http://www.pobox.com/~kragen/>
> The Internet stock bubble didn't burst on 1999-11-08.  Hurrah!
> <URL:http://www.pobox.com/~kragen/bubble.html>
> The power didn't go out on 2000-01-01 either.  :)
> 

-- 
Karsten M. Self (kmself@ix.netcom.com)
    What part of "Gestalt" don't you understand?

SAS for Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html
Mailing list:  "subscribe sas-linux" to mailto:majordomo@cranfield.ac.uk


[1] DMCA: Digital Millennium Copyright Act.  UCITA:  Uniform Computer
Information Transactions Act.  The first re-wrote copyright law, noteably
for us section 1201.  The second is trying to rewrite the uniform commerce
code used in establishing contract laws.  As these laws are adopted at
the state level, UCITA's evolution has been longer and windinger than
most sausage-factory legislation.

[2] 17 USC 1201 http://www4.law.cornell.edu/uscode/17/1201.html

[3] 17 USC 107 http://www4.law.cornell.edu/uscode/17/107.html

[4] Samuelson: http://www.lawsch.uga.edu/~jipl/vol1/samuelsn.html


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