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The Courts Government Software News

Contract Case Could Hurt Reverse Engineering 269

Posted by michael from the ties-that-bind dept.
An anonymous reader writes "InfoWorld has an article about how a 'U.S. Supreme Court decision could call into question a common practice among software companies: studying competitors' products to improve their own offerings.'"
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Contract Case Could Hurt Reverse Engineering More

Contract Case Could Hurt Reverse Engineering

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  • Sounds like copyright infringement instead... (Score:5, Insightful)

    by benjamindees ( 441808 ) on Monday June 30, 2003 @02:27AM (#6328858) Homepage
    Meeker noted that Baystate had reproduced a handful of errors in Bowers program. Kann, Baystate's lawyer, said all the errors came from Bowers' user interface, not the underlying code.

    • Re:Sounds like copyright infringement instead... (Score:5, Insightful)

      by cait56 ( 677299 ) on Monday June 30, 2003 @09:34AM (#6330138) Homepage

      My initial read is somewhat similiar. A judge has come up with faulty reasoning to support what seems right. But they should come up with the correct rationale. The rationale offered would be chilling.

      If customers have the right to examine products, and determine what they like and dislike about each, then it isn't much of a leap to say that producers have the same right to examine their competitor's products.

      But there's a line somewhere between studying what some product does, and essentially stealing its research. Whatever the protection mechanism should be, it should stop lazy companies from simply stealing interface designs from other companies rather than paying to develop them on their own.

      So it is pretty much copyright infringement, except that some allowance has to be made for the ability of the market to clone interfaces from dominant providers.

      Copyright also provides an excellent insight into what contract law must not be allowed to create here. No author is allowed to sell their mystery to the general public except that no other mystery writer may read it for the purpposes of evaluating what was effective or ineffective.

      Indeed many writers want to aware of what others have written, so they can ensure that they don't inadvertently write something too similiar to an existing book.

      The bottom line is that the term "reverse engineering" should never be applied to observing the external behavior of a product. To me that term implies trying to figure out how the product works, not to trying to figure what the product does.

      Slavishly copying what a product does, before the product has an established user base, also strikes me as improper copying. I'll admit I do not know how to define that line. It may be similiar to judgement calls made on when fictional characters have achieved "cultural icon" status.

  • Errors replicated? (Score:5, Interesting)

    by Ayanami Rei ( 621112 ) * <rayanami&gmail,com> on Monday June 30, 2003 @02:31AM (#6328871) Journal
    That's when I would start to get REALLY worried about "reverse engineering".

    So they play with the finished product and copy what they see (roughly) -> fine, as long as you don't violate anything protected by patents. No clause in a EULA could be upheld that would prevent that. It has nothing to do with what can be put in a EULA, but rather, what can be determined as permissible in such an off-hand context.

    But to have errors duplicated in the system: I assure you would not be duplicated in a UI unless the coders copied the exact methods behind the UI. Hence they have legitimate claims that there is something fishy going on.

    There's matching behavior, and then reimplementing without first understanding. The latter is 1) irresponsible 2) lazy, 3) contemptable, and those that practice should not be protected by reverse-engineering rights. I claim that shouldn't be called reverse-engineering, but something else.

    • Re:Errors replicated? (Score:5, Insightful)

      by The Vulture ( 248871 ) on Monday June 30, 2003 @02:45AM (#6328937) Homepage
      Not necessarily.

      The company that I used to work for was making a router-type product for the cable internet industry. Seeing as Cisco is considered the industry leader, it was highly desirable to copy the Cisco CLI commands, down to the exact command syntax (where possible).

      The reverse engineering in my particular case involved typing in commands at the Cisco CLI, and then looking at either the configuration file, or SNMP MIBs to see the results (which is considered reverse engineering, even though I didn't look at any Cisco code).

      Now, suppose I put in a very counter-intuitive command, or even a command which was considered to be "in error" (i.e. confusing syntax, whatever). Would you say that something fishy is going on? We're just trying to keep the interface as similar to Cisco as possible.

      The article said that the error looked to be in the UI and not in any underlying code. Of course, the question is, were both programs done in the same language, use the same GUI toolkit, etc? Look and feel alone do not constitute full-blown "code-ripping", as we used to call this years ago.

      -- Joe

      • Oh please... (Score:3, Informative)

        by Ayanami Rei ( 621112 ) *
        UIs don't make their own errors. You know what I'm talking about.

        If a dialog box pops up with an error message in it, guaranteed it was generated by something behind the UI.

        Copying a UI is copying the location of menu items, command line syntax, etc. They keep saying "UI" and I keep hearing "what it looks like" or "how the toolbars look" or "whether its a modeless dialog or tabs"

        Would you forget to add the SCROLL_UP event handler in the custom GDI object just like the original designer by opening up the

        • Although reverse engineering is generally defined as reversing software's machine code back to the source code, Baystate claims it looked only at Bowers' user interface in order to improve its CAD software product. "There was no evidence of cracking encrypted source code or anything of that nature," said Bob Kann, Baystate's lawyer, of Bromberg and Sunstein, in Boston. "This may cause havoc in the industry. Before this case, it was perfectly legal to evaluate a competitor's product."

          and

          Meeker noted tha

      • Re:Errors replicated? (Score:5, Insightful)

        by stephanruby ( 542433 ) on Monday June 30, 2003 @04:06AM (#6329116)
        Seeing as Cisco is considered the industry leader, it was highly desirable to copy the Cisco CLI commands, down to the exact command syntax (where possible).

        It's a good theory, but it's not applicable to this case. It's obvious from the article that the original programmer of this application wasn't the industry leader. May be there is another perfectly good explanation to copy his errors, but personally I just don't see it.

        • have you ever heard of being bug compatible with another program? When you emulate an interface, you need to be not only copying what is considered "properly running interface", but you also must be emulating any errors of the interface. The reason is that you don't know what are errors and what is a desired effect. If you were to release a clone of a program, and you want the interface to be the same, then their interface bugs should show up in your code. If not by accident (not usualy) then intentionally

    • Re:Errors replicated? (Score:4, Insightful)

      by geschild ( 43455 ) on Monday June 30, 2003 @03:03AM (#6328978) Homepage

      "There's matching behavior, and then reimplementing without first understanding. The latter is 1) irresponsible 2) lazy, 3) contemptable, and those that practice should not be protected by reverse-engineering rights. I claim that shouldn't be called reverse-engineering, but something else."

      Correct. That term would be "copying" and please let's not get into that area? I've seen enough on copy protection lately... ;-)

    • If you want to make something that works just like the original, you copy much of the bad behavior as well as the good. How these defects are implemented, though, is up to the developers though they have to duplicate them. See Wine as an example.
    • Cartographers put fake streets in maps so they can immediately tell if a competitor's map is a copy of their data.

      Didn't programmers do this regularly years ago to prevent exactly this sort of thing? "In defendant's program, if you hold shift-alt-xzyacb, it brings up the same exact message as it does in our program, proving they copied the exact source from us, since there's no plausible reason for that to be in the program otherwise" type thing. Do they still do that?

  • It's what the consumers want. (Score:4, Insightful)

    by aerojad ( 594561 ) on Monday June 30, 2003 @02:32AM (#6328877) Homepage Journal
    If consumers go out and buy software to preform a certain sort of task, doesn't everyone involved have the right to make their own product like that to try and compete? Ford gave us the car, but other companies could take a look at it and try to improve upon it. How many resturants and burger joints are their in existance? How many computer operating systems are there? How many web browsers? How many things or places that do or offer the same thing as others, just at a different price, or in a different form, look, shape, etc.

    Unless it's so blatant that the company took everything down to the GUI in reverse engineering, it's just trying to better the same service, thus helping out competition, lowering prices, so on, so forth.

    • Re:It's what the consumers want. (Score:4, Informative)

      by Twylite ( 234238 ) <twylite&crypt,co,za> on Monday June 30, 2003 @03:25AM (#6329024) Homepage

      Consumers also want more Harry Potter, but that doesn't give authors (other than JKR) the right to use the character, setting or plot from the existing novels.

      You have to remember that Copyright covers the original work as well as derivatives. In the case of computer software, the concept of a "derivative" has not been tested. There has been no need to do so in the US because of the availability of patents (e.g. Adobe has patented elements of their GUI). Other legal systems may allow patent or design laws to cover this issue.

      In this particular case, Copyright isn't the issue being discussed, although it does come into it for other reasons. The seller has elected not to exercise his rights to redistribution (as Copyright owner) unless the buyer enters into a contract. In other words, it is law of contract that is in effect here.

      The "legal opinion" stated in the article is, IMHO, fearmongering. Copyright law does not specifically reserve the right of reverse engineering, and there is no reason that such a limitation cannot be added by contract. On the other hand Copyright law does explicitly permit fair use. So to deny fair use in a contract would be at odds with a law, and most legal systems will find the contract or at least that provision invalid.

      Back to the issue of derivative works. If the characters and setting of a novel are protected (in and of themselves) by Copyright, does it stand to reason that core elements of software bear the same protection? If not, why not? Any end user will tell you that a usable interfaces makes the difference between bad software and good software, even when the same functionality is present.

      To be more precise, Copyright applies to a specific expression of an idea, not to an actual idea. An oft-cited example is "PacMan". Technically, almost every PacMan clone out there is an infringement of Copyright because they employ the same characters and gameplay. The general concept of a character running around eating dots, however, is not subject to Copyright. The test for copyright infringement is subjective and relies on establishing "substantial similarity" between the works.

      So let's get down to business. Archive programs are a dime a dozen. They range from completely free to vastly expensive. Most of them have the same functionality: zip, tar, gz support; view, create, test and extract archives; vary the compression levels; etc. Some have minor functionality enhancements such as support for other formats, disk spanning, and the like. The what really sets one program apart from another, what puts WinZip as the market leader despite PKZip's many years of dominance and the dramatically lower price of other alternatives, is the intuitive and friendly user interface (to cluebies, not necessarily to you ;p ).

      Copyright is all about protecting a competitive edge, given that time and resources have been invested in creating it. User interfaces certainly sound to me like something that can enjoy Copyright protection.

      • You have to remember that Copyright covers the original work as well as derivatives.

        [...]

        Back to the issue of derivative works. If the characters and setting of a novel are protected (in and of themselves) by Copyright ...

        If you're right about how "derivative works" is interpreted as regards copyright law, then I have to ask: who the fuck came up with the brilliant notion that characters, settings, etc., which are all ideas and not specific expressions, are protected under copyright law instea

        • Re:It's what the consumers want. (Score:5, Insightful)

          by Twylite ( 234238 ) <twylite&crypt,co,za> on Monday June 30, 2003 @04:28AM (#6329159) Homepage
          But to call something a "derivative work" simply because it makes use of some of the characters and ideas within someone else's work is sheer lunacy.
          Put another way: I should be able to write a brand spanking new novel set in the Star Wars universe and involving some of the characters within it, without that novel being declared a "derivative work" and thus a violation of copyright. Why? Because I didn't copy anything except ideas.

          Really? So you should be able to write a Harry Potter novel, using in your favour the huge success of JK Rowling's work to boost the acceptability and profit potential of your derivative? Do you really think JKR should have to suffer a loss of sales when someone reads your miserable derivative and decides that they don't really like Harry Potter?

          So let's start with this: you have a completely wrong notion of what Copyright is intended to protect. Is is specifically intended to protect ideas, not a particular physical object in which they are captured. It is specifically intended to prevent anyone from copying your ideas so closely that they are confusingly similar to or even indistinguishable from the original work. It is specifically intended to protect the intellectual creations of a person from use (without permission) by any third party.

          A character and a setting are VERY specific intellectual property or expressions. Although the fantasy and science fiction genres are HUGE, nearly every renowned work has immediately recognisable and distinguishable characters and settings. Middle Earth, Dune, Narnia, the Nautilus, Jedi, Discworld, Gandalf, Vimes, Paul Atreides - what makes you think that you can merely take the VAST amount of "development time" these authors spent on their creations and use it in a novel of your own?

          You can prattle on about "should" and "shouldn't" all you like, but this IS the state of Copyright, this IS how it works, and in my not particularly humble opinion you are not only WRONG but a leech that doesn't understand the true source of value or just wants to sit on your arse and have society give you everything you deserve for being such a magnificent gift to this planet.

          • Really? So you should be able to write a Harry Potter novel, using in your favour the huge success of JK Rowling's work to boost the acceptability and profit potential of your derivative?

            Do you think JK Rowling should be able to write a Harry Potter novel, using in her favor the huge success of all the stories that came before that talk about magic, witchcraft, good, evil, etc., to boost the acceptability and profit potential of her derivative? Well?

            Do you really think JKR should have to suffer a

            • Re:It's what the consumers want. (Score:4, Insightful)

              by Twylite ( 234238 ) <twylite&crypt,co,za> on Monday June 30, 2003 @05:58AM (#6329306) Homepage

              Do you think JK Rowling should be able to write a Harry Potter novel, using in her favor the huge success of all the stories that came before that talk about magic, witchcraft, good, evil, etc., to boost the acceptability and profit potential of her derivative? Well?

              "Specific expressions of ideas". Get it? Magic, witchcraft, good and evil are concepts. A boy wizard with a lightning scar on his forehead who attends a school hidden in modern-day England where it can't be seen by muggles is not a general concept. This are very specific expressions of general concepts.

              If JK Rowling is concerned about that possibility, then she has a means of dealing with it: it's called a trademark.

              Wrong. A trademark could protect the name "Harry Potter" for use in a particular context for the purposes of carry out trade. A trademark does NOT protect her against another author writing a story about a boy wizard with a lightning scar on his forehead who attends a school hidden in modern-day England where it can't be seen by muggles, called John Miles. And unless she trademarks every character and place name in her books, it doesn't stop another author from writing a story about Sirius Black and his escapades at Hogwarts.

              Use the right tool for the job.

              Copyright is the right tool. You just don't understand it.

              And remember the entire reason for copyright in the U.S.: "to promote progress in the sciences and useful arts". Not to make the originators of the works a boatload of money. Not to confer status. To make the world a better place.

              Economics 101: We (as in the "Western world") live in a market economy. The premise of this system is that society has at its disposal resources, and each individual must use the resources at his/her disposal to obtain more resources in order to survive, and possibly to prosper. This usually entails exchanging labour for cash, and cash for food, clothing, housing, etc.

              The profit motive is thus core to the functioning of a market economy, and a free democratic society. Like it or not. Every government intervention in a market economy is socialistic, intended to restrict the otherwise free ability to trade and profit for some (usually good) reason. For example, unjust enrichment (profit at the expense of another) is outlawed, unfair competition (which has no meaning in a true free market) is defined, consumers are protected by standards of products and behaviour, and so on.

              The aim of copyright is to promote progress in sciences and arts. The mechanism through which most countries have elected to achieve this is economic: a protected monolopy over a work, so that a potential creator is given an economic incentive of being able to be the exclusive benefactor of that work for a period of time. In this way there is an incentive to create works that will, eventually, fall into the public domain.

              Now, interpreting copyright the way it apparently has been may accomplish that, but I doubt it, considering all of the good stories (as an example) that certainly haven't been published because of this particular interpretation of copyright.

              As it happens, I am strongly in favour of reduced copyright durations, especially for derivative works, for precisely the reasons you have voiced, but in conjunction with my knowledge and understanding of why you CAN'T make derivatives as you would like to.

              But, as with everything, there needs to be balance. If derivatives were freely allowed, the new Harry Potter book would almost certainly not be going to China, as the Harry Potter works received a VERY bad name there after a very poor (and sordid) derivative was illegally published. That could deprive not only JKR of income, but Chinese people of very good literature.

              At the other end of the spectrum, I am frustrated at the lack of ava

          • Really? So you should be able to write a Harry Potter novel, using in your favour the huge success of JK Rowling's work to boost the acceptability and profit potential of your derivative?

            I don't see why not. But whether it's legal or not has nothing to do with "should".

            A character and a setting are VERY specific intellectual property or expressions. Although the fantasy and science fiction genres are HUGE, nearly every renowned work has immediately recognisable and distinguishable characters and s

          • "A character and a setting are VERY specific intellectual property or expressions. Although the fantasy and science fiction genres are HUGE, nearly every renowned work has immediately recognisable and distinguishable characters and settings. Middle Earth, Dune, Narnia, the Nautilus, Jedi, Discworld, Gandalf, Vimes, Paul Atreides - what makes you think that you can merely take the VAST amount of "development time" these authors spent on their creations and use it in a novel of your own?"

            Well, If I did, I wo
        • If you're right about how "derivative works" is interpreted as regards copyright law, then I have to ask: who the fuck came up with the brilliant notion that characters, settings, etc., which are all ideas and not specific expressions, are protected under copyright law instead of trademark law?

          In some cases people do attempt to apply trademarks to fictional characters. The most extreme case being Paramont which at one time appeared to be attempting to trademark any proper noun associated with Star Trek(tm
      • Copyright is all about protecting a competitive edge, given that time and resources have been invested in creating it. User interfaces certainly sound to me like something that can enjoy Copyright protection.

        But where does it end? Where is the line? I'm going to bite the big one for this but how much is KDE starting to look like windows? If GUIs can enjoy protection, and what's to stop Microsoft from patenting a GUI in which the main menu can be accessed with a button containing the company's logo in

        • But where does it end? Where is the line?

          That's for the courts to answer. They will consider a range of issues including prior art (yes, even for Copyright) and substantial similarity. There are many more issues than Copyright to consider though.

          what's to stop Microsoft from patenting a GUI in which the main menu can be accessed with a button containing the company's logo...

          Not much. Patents are different to Copyright. Can MS patent this? Maybe, I don't know. Adobe got patents on their GUI eleme

      • Characters and settings are not to be copied ? I'm glad you picked harry potter.

        I suggest you search and read a translation of "Griezelstate" by Anthony Horowitz (it's in dutch, but it's been translated).

        The character harry potter (evil adopted parents, letters magically appearing to send him to magic school) is sure as hell copied from that book, and the setting too (griezelstate is an island with dangerous woods, there is a version of dyadine alley, the tree on the premises attacks them, the point syste
    • How many resturants and burger joints are their in existance?

      Just one, Taco Bell. Or have I got ahead of myself with the franchise wars?

  • He stole my GUI! (Score:5, Interesting)

    by Kenard ( 540102 ) on Monday June 30, 2003 @02:32AM (#6328878)
    This is about one company looking at anothers user interface of a CAD program and making improvements to thier own software. Oh, and the EULA said something about don't reverse enginering this.

    Isn't this more of a issue of Look and Feel?


    I also like how they say the GUI is a trade secret.

    • This is about one company looking at anothers user interface of a CAD program and making improvements to thier own software. Oh, and the EULA said something about don't reverse enginering this.

      WHEW! Thank god you're around to summarise the whole article so succinctly. For a minute I thought I might actually have to RTFA. But who needs that with such a painstaking, well thought out, expert dissection available right here!? :P

  • Ridiculous... (Score:5, Funny)

    by tinrobot ( 314936 ) on Monday June 30, 2003 @02:33AM (#6328886)
    At the rate we're going, Ford won't be allowed to take apart Chevys to see how they work... McDonald's employees will be jailed when they eat at Burger King... and software engineers who look at competitor's interfaces will be blinded with hot irons.
      • and software engineers who look at competitor's interfaces will be blinded with hot irons.
      We must plug the analog holes!

    • Re:Ridiculous... (Score:3, Insightful)

      by GrouchoMarx ( 153170 )
      At the rate we're going, Ford won't be allowed to take apart Chevys to see how they work... McDonald's employees will be jailed when they eat at Burger King... and software engineers who look at competitor's interfaces will be blinded with hot irons.

      OK, who the heck modded this Funny? There's nothing funny about the world that we're building for ourselves, where the very act of thought becomes illegal because it's based on some other thought. I want a +1 Scary, or +1 Orwellian-But-True. That would be

    • Re:Ridiculous... (Score:3, Insightful)

      by mpe ( 36238 )
      At the rate we're going, Ford won't be allowed to take apart Chevys to see how they work... McDonald's employees will be jailed when they eat at Burger King... and software engineers who look at competitor's interfaces will be blinded with hot irons.

      Not exactly funny since there actually is a case of a Coke delivery driver being sacked after being caught drinking a Pepsi. (Or possibly vice versa.)

  • Algorithms should be public-domain (Score:5, Interesting)

    by kramer2718 ( 598033 ) on Monday June 30, 2003 @02:35AM (#6328894) Homepage
    When I was a programmer in Computer Science 101, someone copied one of my programs, and I was accused of cheating. When I went to talk to the professor about it, I confessed that I had helped another student explaining that I told him how to get a particular graphic to work properly. He replied that in that instance, I had done nothing wrong that algorithms are free to share. I was absolved (the plagiarism was different).

    But I still think algorithms should be public domain! If you own a company, and you have a particularly cool algorithm you want to hide, you should have to either obfuscate or encrypt the machine code. There is absolutely no reason that algorithms should be protected IP.

    Computer Science is a weird mixture of science and engineering. A lot of the theoretical and some of the applied work is very scientific, while most systems work is very much engineering. Scientific discoveries are not generally patentable, inventions are.

    The compromise I propose is this: allow source code to be copyrighted, but deny the patentabilty of algorithms. As anyone who has programed knows, even with a detailed algorithm and specification, there still is a lot of engineering required to complete a finished product. That engineering work would still be protected.

    • Of course algorithms should be patentable - suppose I come up with a great new video codec tomorrow, much better than anything else, but I can't patent it, I can only copyright the source code.

      Now, I'm faced with a choice. I could develop closed-source software implementing the codec, and refrain from publishing my new algorithm, thus protecting my innovation with the copyright I'm allowed - if I do this, I'll probably make myself a tidy profit (assuming I know someone who knows the least bit about market

  • Bad Baystate... no cookie (Score:5, Interesting)

    by calebb ( 685461 ) * on Monday June 30, 2003 @02:38AM (#6328905) Homepage Journal

    Bowers had offered to work with Baystate in the late '80s, but the company had rejected his offers [...] Baystate also pressured CAD software company Cadkey not to distribute Bowers' product, and later, Baystate purchased Cadkey and shut Bowers out of the market [...]

    This sounds familiar; Find your biggest competitor, buy out their potential investors & then 'borrow' their technology. I do feel sorry for Bowers in all this! He mortgaged his house 10 years ago to fund the marketing of his software & he still hasn't received a dime from Baystate.

    Meeker noted that Baystate had reproduced a handful of errors in Bowers program

    Yup, that's a problem. It's hard to rationalize something like that... then again, judges aren't always tech savvy & they have been convinced that software DVD decoders must digitally copy [digitalspeech.org] a DVD in order to play it, thereby making DVD playback on a PC illegal. I'm sure Baystate's lawyers tried to argue that in making a 'similar' GUI to Bower's program, they ran into the same bugs by accident - or by design - or something else just as ludicrous.

    Don't get me wrong, I'm all for capitalism; But decompiling your competitor's software is not the same as merely using ideas that seem to work well for your competitor.

  • Come on (Score:2, Insightful)

    by SargeZT ( 609463 )
    This is pure R&D People. It's been happening for hundreds if not thousands of years. You have to find out the weaknesses and strength's of an opponent, and improve upon both. Not only has this been happenening for a long time, it has moved our economy ahead by setting a standard for companies to adhere to. If Product A dosen't do as much as Product B, it's obvious Product A is going to win the battle.

  • Alternative Installers? (Score:5, Interesting)

    by femto ( 459605 ) on Monday June 30, 2003 @02:39AM (#6328908) Homepage
    So what are the rules if you don't actually install the software? Instead you manually unpack the software on to the drive and never click on any 'I agree' button.

    I can see one way companies might get around this is to encrypt the software, and have decryption initiated by the 'I agree' button. The DMCA would then be invoked against anyone who wrote their own installation program. Even then, is it cut and dried whether an alternative installation system is covered by the DMCA?

    Is installing a piece of software one has just bought an act of copyright circumvention? You're not circumventing copyright, just the contract the author has attached. One could argue that you can't use a work without agreeing to the author's contract, but hasn't the author already made a contract with you by accepting your money?

    • Re:Alternative Installers? (Score:4, Informative)

      by YOU LIKEWISE FAIL IT ( 651184 ) on Monday June 30, 2003 @03:09AM (#6328990) Homepage Journal
      So what are the rules if you don't actually install the software? Instead you manually unpack the software on to the drive and never click on any 'I agree' button.

      Back in the days when I was heavily into reverse engineering, we occasionally did things like this as a "learning exercise" ( it's really not that difficult to blow away a couple of calls to MessageBoxA with a carpet of NOP's, so the value of the exercise is questionable at best ).

      The advice we got ( albeit, not from real lawyers ) was that the wording of ( most ) of the EULA's stated that we had no right to use the software short of viewing and acknowledging the license, regardless of the monies we might have tendered for it. No click, no license, illegal usage. The cash is just to get you to that screen, although the more generous ones will allow you to return the software for a refund if you refuse to comply.

      The analogy made at the time was that jumping around the license acceptance screens one way or the other to get at the juicy marrow^Wsoftware within is like sneaking onto a skydiving plane to avoid signing the disclaimer of liabilities, even if you've paid in advance. It's a pretty awful analogy.

      Any and all lawyers are invited to present a non-crappy analogy. :-)

      -- YLFI

  • I mean, reverse-engineering is legal, right?

    Unless someone says "ohh, don't do that!"?

    I don't see how it's legal to forbid something that is legal just because it's under the blanked of the "EULA."

    What's next? I think the bigger problem should be addressing what is acceptable for EULA terms.

  • From the little info we have it sounds solid (Score:3, Interesting)

    by SmoothTom ( 455688 ) <Tomas@TiJiL.org> on Monday June 30, 2003 @02:40AM (#6328913) Homepage
    Another company looking at the interface and saying "Gee, that's good idea. Can we come up with something like that, or even better?" is quite all right. that's the way things get better.

    If, however, they take it apart and copy it right down to the included errors, that's theft, and not all right.

    I have to assume that the evidence given proved the theft, and that's why it went through at least three judicial levels and came out the same each time.

    Congratulations are due the winner.

    --
    Tomas

  • But Bowers' lawyer countered that Baystate had two weeks in its development schedule to examine Bowers' software, giving the software vendor time to look at more than the user interface. "They had two weeks to reverse engineer his software," countered Bowers' lawyer, Frederic Meeker, of Banner and Witcoff, of Washington, D.C. "Two weeks is a long time -- that's a lot of looking."

    You mean to tell me that this guy's argument is "they had time to do it, so thus they did it" ?!!! Never mind that two weeks i

  • My take (Score:3, Insightful)

    by Raul654 ( 453029 ) on Monday June 30, 2003 @02:46AM (#6328942) Homepage
    (snip) ...Baystate claims it looked only at Bowers' user interface in order to improve its CAD software product. "There was no evidence of cracking encrypted source code or anything of that nature," said Bob Kann, Baystate's lawyer, of Bromberg and Sunstein, in Boston. "This may cause havoc in the industry. Before this case, it was perfectly legal to evaluate a competitor's product."

    But Bowers' lawyer countered that Baystate had two weeks in its development schedule to examine Bowers' software, giving the software vendor time to look at more than the user interface. "They had two weeks to reverse engineer his software," countered Bowers' lawyer, Frederic Meeker, of Banner and Witcoff, of Washington, D.C. "Two weeks is a long time -- that's a lot of looking."

    ...

    "From a small software company's perspective, it's virtually impossible to recover your investment without some sort of protection," Meeker said. "That's a standard provision ... you put in a contract with another company so that they can't reverse engineer the trade secret out of the product. That software took years to develop."    (/snip)

    Ok, so this boils down to a question of fact, which is a question for a jury to decide. The burden of proof ["preponderence of the evidence" in this case, IIRC] rests squarly on the plantiff.
    That question is -- did Baystate decompile Bower's cad program to make their own. If so, they are guilty. If Baystate did not - if they wrote their program to match the look, feel, and usabilty of Bower's program, then they are obviously not guilty, shrinkwrap license not withstanding. I don't think you could possibly claim having a certain user-interface or user-available options are trade secrets, merely how you implement them.

  • Reverse engineering is good (Score:4, Insightful)

    by hibiki_r ( 649814 ) on Monday June 30, 2003 @02:53AM (#6328958)

    Allowing a license like this to stop reverse engineering/product evaluation is probably one of the worst things you can do to the software industry today. What if MS or Apple had done just that while releasing Windows/MacOS? Would the maker of any window manager that had window title bar, or a start menu, be sued for reverse engineering?

    Spending two weeks reviewing the competition's product seems like a perfectly reasonable amount of time to learn its strengths and weaknesses. The only way to compete in an already established market is to build a better product than your competitors (cheaper/better/faster). How are we supposed to do that w/o being able to analyze the competitors' product?

    Also, if reverse engineering can be banned, why try to patent anything? Patents eventually expire. A "trade secret" like, lets say, your basic UI design, that is only communicated to your customers after you've accepted the license, seems to me just as good protection as a patent, since anyone copying has broken your license, but offers no expiration date.

    Hopefully the next time someone is set to court for something like this the result will be different. Reverse engineering is key to allow competition, the key principle to our economy. Undermine competition, and you are undermining one of the key foundations of our society. I just hope the next judge undestands that

  • Missed the point... (Score:4, Insightful)

    by sbryant ( 93075 ) on Monday June 30, 2003 @03:10AM (#6328993)

    The point is not so much that reverse engineering - it's more the whole thing about the EULA. Here's a quote:

    The legality of this practice, called reverse engineering, is in question after a lower court found that a software company had violated a shrink-wrapped license contract when it reverse-engineered a competitor's piece of software.

    Another quote:

    Although the breach of contract ruling applies only to the U.S. Court of Appeals for the Federal Circuit, the Supreme Court's lack of action could embolden other software companies to prohibit reverse engineering or take away other fair use rights allowed under copyright law by including such prohibitions in an end user license agreement, said Karen Copenhaver, a patent and intellectual property lawyer with Testa, Hurwitz and Thibeault, of Boston.

    .. and another:

    The impact of the case, said Copenhaver, is that end user license agreements could become more restrictive. "Saying you can reserve that [reverse engineering prohibition] in a shrink-wrap license is saying a company can put virtually anything in a shrink-wrap," Copenhaver said. "Now there are very few limitations on what people will try to put on a shrink-wrap."

    The EULA terms are unavailable at the time of purchase, so you might be buying software you can't even use! This was the reason that Germany decided that such licences are not legally binding (which avoids the other problem entirely). What other rights will they to take away from us?

    Does the US have a concept of inalienable rights? (i.e. rights that can't be taken away, for those who don't speak such good English) Even if reverse engineering is not inalienable, I'd be trying to show that the buyer was forced to give legal rights, without being able to find out about it before purchasing.

    -- Steve

    • Re:Missed the point... (Score:3, Insightful)

      by kcbrown ( 7426 )

      Does the US have a concept of inalienable rights? (i.e. rights that can't be taken away, for those who don't speak such good English)

      It has the concept. But given how things have been going here in the last 10-20 years or so, I'd say that "inalienable rights" are only a concept, even though there are some explicitly listed in the Constitution.

      Not even those are "inalienable" in a country where the letter of the law, and not the intention of the law, is the only thing that counts in court (well, t

    • Re:Missed the point... (Score:4, Funny)

      by RickHunter ( 103108 ) on Monday June 30, 2003 @07:48AM (#6329617)

      Does the US have a concept of inalienable rights?

      Yes. Unfortunately, they were found to have entered the country from Europe without a proper VISA, and were thus alien rights. They were deported in the mid-80s, and no-one in America has seen them since. Recent reports from the Department of Homeland Security and the White House suggest that they may be working with secret Euro-terrorist cells in Lichenstein, developing WMDs to be used to conquer the world, or possibly just rain on the President's parade.

  • This would be great for SCO (Score:4, Interesting)

    by Billly Gates ( 198444 ) on Monday June 30, 2003 @03:28AM (#6329035) Journal
    If the contract case covers look and feel as reverse engineering and copyright violation, expect SCO to squash Linux once and for all.

    Lets hope for the best. The effects could be quite damaging. Compatibility would also be outlawed which SCO would attack any Unix around for that reason.

  • More about patents, less about reverse engineering (Score:5, Interesting)

    by mpthompson ( 457482 ) on Monday June 30, 2003 @03:34AM (#6329043)
    Even though Bower's won the case in part on the premise that Baystate broke the EULA and reverse engineered his CAD template system, it seems the more important issue is that Baystate was found guilty of infringing on Bower's 1990 patent. It only served to bolster the patent infringement case and gain the sympathy of the court that Baystate apparently ignored the EULA and set out to purposely reverse engineer the "trade secrets" in Bower's product.

    However, if the patent didn't exist would Bower's have ultimately won this case based purely on the reverse engineering clauses in the EULA? I suspect not.

    It seems that this case doesn't seem to offer a good precedent for preventing the common practice of reverse engineering through a EULA because so much of it is tied up in the patent infringement aspects of the case. Also, the article makes it seem that Baystate so closely copied the UI that they could have infringed copyrights as well which only serves to make the case even more ambiguous with regards to reverse engineering.

    It would be more interesting if these other aspects of the case didn't exist and Bower's had simply tried to sue Baystate on the fact they violated the EULA by having two weeks of reverse engineering his product in their development schedule -- even if he couldn't point to specific trade secrets of his being used by Baystate in their product.

    Therefore, I doubt this case will even put a dent in the common practice of reverse engineering competitors products.

    BTW, IANAL so don't sue me if you get sued.
    • I agree with this, and I think it is quite possible that the reason that the Supreme Court didn't want to hear this case is because it didn't provide a good test of the interesting law. My guess is that they would hear a similar case if the prosecutions case rested solely on violation of an EULA.

      BTW, a few posters appear to think the DMCA provisions can be combined with this precedent to create very strong anti- reverse engineering safeguards. They shouldn't, since the DMCA is specifically worded to exc

  • IEEE position (Score:4, Informative)

    by sir_cello ( 634395 ) on Monday June 30, 2003 @03:36AM (#6329045)

    The IEEE USA is pursuing this:

    * Press release regarding Baystate v Bowers:
    http://www.ieeeusa.org/releases/2003/0604 03pr.html

    * Details of the amicus curiae, etc:
    http://www.ieeeusa.org/forum/policy/2003/Bay state0 60203.html

    * General position on reverse engineering:
    http://www.ieeeusa.org/forum/POSITIO NS/reverse.htm l

  • Anti Trust (Score:4, Insightful)

    by lllama ( 228050 ) on Monday June 30, 2003 @03:41AM (#6329060)
    I thought one of Microsoft's arguments in the anti-trust case was that competitors could always reverse engineer the Win APIs (I'm not MS bashing, I just can't think of any other cases).
  • Why would you prohibit reverse engineering? Probably because you're too stupid to protect your ideas otherwise. When a piece software takes you years to develop, there's surely something ingenious and original, so copyright will definitely protect you. For the code, for the lay-out etc.

    Next, there are patents. I know this is a difficult one (especially at /.), but when you have developped some groundbraking application, in my opinion, you have the right for a patent as a reward. Should it be 20 years? Tha

  • I suspect what happened... (Score:3, Insightful)

    by Ath ( 643782 ) on Monday June 30, 2003 @03:45AM (#6329071)
    There were two claims here in the lawsuit: 1) breach of the licensing contract and 2) patent infringment.

    My guess is that the appellate court upheld the trial results in their entirety. As I did not read the appellate court opinion, who knows. The Supreme Court did nothing. They did not agree or disagree. They just chose not to hear the case.

    The patent claim was probably pretty clear. But I suspect that the breach of contract claim was a tougher one, as the common law concept of reverse engineering is pretty well accepted. I would hope if reverse engineering bans in EULAs become common practice, the courts in general will apply the long standing common law rights of reverse engineering.

    As the article pointed out, the plaintiff is very sympathetic in this case (just like in the McDonald's spilled hot coffee case).

    We will see what happens.

    • "As the article pointed out, the plaintiff is very sympathetic in this case (just like in the McDonald's spilled hot coffee case)."

      Exactly, which is a big problem in the justice system. If it was a 230-lb muscular construction worker who spilled coffee on himself, he wouldn't have won a damn thing. But they felt sorry for the little old lady, so she won the case and a large monetary award.

  • This is about two things. (Score:3, Informative)

    by Kris_J ( 10111 ) on Monday June 30, 2003 @03:49AM (#6329077) Homepage Journal
    This story is confusing because the issue it about two separate things. "...$5.27 million for breach of contract and patent infringement..." The patent issue is one of user interface design. The breach of contract is about reverse engineering, though the, umm, defendant(?) denies having done any. While the case is worrisome, the article doesn't separate the two issues enough to be useful.

    Of course, these click-through licences that give no real opportunity for negotiation really should be thrown out wholesale. If it wasn't for copyright being unable to cope with the mechanics of computing (installation, caches, etc) they'd be completely irrelivant. Problem is, technically, without some further contract you're not legally allowed to install any software you buy because it would be an unauthorised copy. What a damn mess.

    • This is not true. Copyright law makes specific exemption for copying neccesary for functionality - which includes copying to the hard drive for installation and copies in memory for using. It also makes specific exemption for backups. This is because copyright is supposed to keep you from benefiting at the expense of the original owner by distributing copies, not to keep you from doing whatever you want in the privacy of your own home.

  • Other Issues (Score:4, Informative)

    by sir_cello ( 634395 ) on Monday June 30, 2003 @04:03AM (#6329109)
    There are international agreements that imply allowance of reverse engineering. The US is a signatory to these.

    TRIPS:

    "Article 9, 2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such."
    [http://www.wto.org/english/tratop_e/trips _e/t_agm 3_e.htm]

    WTO Copyright Treaty:

    "Article 2, Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such."
    [http://www.wipo.org/eng/diplconf/distrib/ 94dc.htm ]

    If you really want to read about this and reverse engineering in depth, try:

    * "REVERSE ENGINEERING & DECOMPILATION OF COMPUTER PROGRAMS" [http://www.indlaw.com/publicdata/Articles/4_6_200 1_2_57_29_PM_Indlaw/article.pdf]

    * "Reverse Engineering Clauses in Current Shrinkwrap and Clickwrap Contracts" [http://www.cptech.org/ecom/ucita/licenses/reverse .html]

    * "THE LAW & ECONOMICS OF REVERSE ENGINEERING" [http://www.sims.berkeley.edu/~pam/papers/l&e reveng5.pdf]

    * "REVERSE ENGINEERING UNDER SIEGE" [http://www.sims.berkeley.edu/~pam/papers/CACM on Bunner.pdf]

  • say goodbye to samba (Score:5, Informative)

    by protect imagination ( 685560 ) on Monday June 30, 2003 @04:12AM (#6329125)
    i'm surprised nobody has mentioned samba yet. the samba team have been careful to work outside THE LAW (or at least it's jurisdiction), but it's only a matter of time before the world leading superpower pressures other nation states to "harmonize" their laws with the US:

    CNN Article from 2000 [cnn.com] "There are rather insane laws in the U.S. about reverse engineering, and so we sidestepped those by having the work done in Europe under the European Union fair-use laws," said Jeremy Allison, a software developer at VA Linux Systems Inc. in Sunnyvale, Calif. Allison co-authored Samba, a Windows file-serving program that allows Unix machines to serve file-and-print services to Windows clients. Allison said his team is forced to reverse engineer because Microsoft doesn't offer documentation of its proprietary protocols. But when the Samba team decoded the Microsoft domain controller protocol to allow Samba servers to interoperate with Windows NT, they made sure the work took place outside the U.S.

  • Reverse engineering economically inefficient. (Score:3, Interesting)

    by Trozy ( 666364 ) on Monday June 30, 2003 @04:36AM (#6329171)
    One could argue that this is a good decision since reverse engineering is economically inefficient. A reverse engineer is expending time and effort to try and "work out" what some else has already done. When someone reverse engineers something they are imposing an (economic) externality on the creator, since notionally they are reducing the value of the initial product by using the creation to create a (possibly superior) supplementry product. A much better solution would be for the reverse engineer to pay for the creator for the orginal design (say half of the costs it would take to reverse engineer). This would yield the same final outcome, with less effort, and each party better off (in monetary terms). That said, this is kinda what the patent system is designed to do (disclose new design whilst granting a temporary monopoly). But the patent system has its problems, namely inflexible length of patent. So maybe reverse engineering is the lesser of two evils.

  • Fair Use (Score:3, Insightful)

    by Crazy Viking ( 230066 ) on Monday June 30, 2003 @04:53AM (#6329201)
    This is just another good argument for the US to adopt some sort of fair use legislation. Fair use in some countries include reverse engineering and copying copyrighted material for own use. For instance, in Norway those who have bought a copyrighted material have rights which cannot be limited by any license agreement. Some forms of reverse engineering are protected under this legislation.

    When is the US going to start living up to its original ideals and protect the freedom of individuals? These days it sounds much more like the "Land of the Properly Set Up Free" to me!

  • my stuff (Score:2, Insightful)

    by oohp ( 657224 )
    Since is *my* hardware and I paid for it, I should be allowed to reverse engineer it. So what if the competitiors reverse engineer your stuff? It only stimulates companies to do better stuff. Just embed everything into a monolithic structure if you want to protect your stuff. I'm not talking about huge integrated circuits, but the whole thing embeded into some kind of plastic/whatever mass. No need for a court decision here. No need for lawyers to collect more fees.

  • The CAFC is the problem. (Score:3, Interesting)

    by ahfoo ( 223186 ) on Monday June 30, 2003 @05:01AM (#6329214) Journal
    The CAFC is like a phone home system in an MS Windows software package called tmp.dat.
    You see the name "Court of Appeals of the Federal Circuit" and you assume, oh yeah that's part of our nations justice system. But it's an evil little fucker that got tacked on just a few decades ago by the administration of a vicious bastard named Ronny Raygun.
    When people complain about the courts being pro-corporate or pro-patents or pro-copyrights, they're generally incorrect, but in the case of this court it's right on the money.
    The CAFC was created by executive order and we damn well need to elect a president with the balls to get rid of it the same way.

  • Bleugh, I'm sick of the whole business (Score:4, Insightful)

    by Rogerborg ( 306625 ) on Monday June 30, 2003 @05:05AM (#6329219) Homepage

    Remember when development was about innovation rather than litigation?

    I'm sick of it. I'm sick of having to pay IP lawyers to review everything I do. I'm sick of seeing farcical lawsuits over copied binaries (c.f. Blizzard versus bnetd), when any competent engineer knows that decompiling a binary gives you an incomprehensible, unmaintainable clusterfuck that you'd be insane to use (errors and all) rather than implementing your own solution. I'm sick of hearing about David versus Goliath confrontations as though we're all supposed to be rooting for David. And most of all I'm sick of reading mealy mouthed legalese arguing (for twelve years!) over the exact meaning and applicability of sub-paragraph 67b/6, rather than a court simply asking what's right.

  • Infoworld article lacks depth (Score:4, Insightful)

    by miu ( 626917 ) on Monday June 30, 2003 @05:36AM (#6329257) Homepage Journal
    Better information available at techlaw [techlawjournal.com]
  • Killing reverse engineering doesn't scare me half as much as giving validity to shrink-wrap licenses.

    M&M/Mars candy license

    By opening this package of M&M/Mars candy, you agree to the M&M/Mars candy license. If you do not agree, please take this package back to your retailer for a prompt refund. Violating the license will terminate your license to the product. Used product will be forcibly removed by our collection agency (Bubba) through the most convenient means possible.

    The mind boggles.

  • The Supreme Court Didn't Decide Anything . . . (Score:3, Informative)

    by werdna ( 39029 ) on Monday June 30, 2003 @07:09AM (#6329488) Journal
    The case was decided in the Federal Circuit almost a year ago, when the Federal Circuit held (contrary to a Fifth Circuit Decision in the 80s) that shrink-wrap provisions precluding reverse engineering are enforceable. The Supreme Court simply turned down (as they do most of the cases that apply) Baystate's petition for them to hear the case, which doesn't mean anything other than they had other things to do this year.

    We filed a brief in this case on behalf of IEEE-USA [ieeeusa.org] and various library associations. The brief lays out our view, at least, of the importance of the case and the consequences of it remaining the law, at least, perhaps, in the First Circuit.

  • It's even worse (Score:3, Interesting)

    by darthtuttle ( 448989 ) <meconlen@obfuscated.net> on Monday June 30, 2003 @08:03AM (#6329663) Homepage
    First, the court already did the do, they already refused to hear it.

    Second, this case isn't about reverse engineering, it's about contract law and copyright protection. While the issue on the surface was reverse engineering, the case was about allowing state contract law to overule the protections given to consumers in copyrights. Copyrights assign a number of rights to consumers. It was created so information would be shared. Once the information is published the publisher gets rights to the form of presentation (ie. a book) and the public gets to use the information presented. Reverse engineering is a way to understand the information given to the consumer. You are "reading" the "software". Apparently there are some books that if we read them we can't use that information. In fact, a publisher could publish a book, sell it in a shrink wrap, and place terms on what you can and can not do with the information in that book. By removing the shrinkwrap you agree to the terms!

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