Digital Law Online: Reverse Engineering

A group that did know what they wanted as an exception, and got it, was the people who were concerned that technological controls could block access to a computer program that was being reverse engineered to find out how it worked, and allow it to interoperate with other computer programs. In Sega v. Accolade, {FN180: 977 F.2d 1510, 24 USPQ2d 1561 (9th Cir. 1992)} the Ninth Circuit had found that such reverse engineering was a fair use, even though verbatim copies of the entire code for a game or game console were made as intermediate steps in the reverse engineering. There had been some controversy over whether Sega v. Accolade and a similar decision from the Federal Circuit, Atari v. Nintendo, {FN181: 975 F.2d 832, 24 USPQ2d 1015 (Fed. Cir. 1992)} were correctly decided, but Congress endorsed their holdings in the DMCA’s legislative history. {FN182: Sen. Rep. No. 105-190 at 32}

(1) Notwithstanding the provisions of subsection (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 circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.

(4) For purposes of this subsection, the term “interoperability” means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged. {FN183: 17 U.S.C. §1201(f)}

While this provision applies only to circumventing an access control, and not circumventing a protection system to infringe one of the exclusive rights, that is all that was needed by the reverse engineers. They already had their court decisions that, if properly done, reverse engineering was a fair use and so wouldn’t violate any rights protected by a control mechanism under 1201(b). And because a rights management system on its own, and not working in conjunction with an access control mechanism, still allowed the viewing of the program being reverse engineered, they didn’t need an exception to Section 1202.

They also got an exception to the trafficking provisions, and the right to share the information they learned:

(2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.

(3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section. {FN184: 17 U.S.C. §1201(f)}

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