Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
anti-competitive use of monopoly power were not overturned. Thematter has now been sent back to the district court for furtherconsideration, yet how the situation will be remedied remains tobe seen.In summary, this case shows the limitations that can beimposed upon the owner of digital property (copyright in software)in the face of antitrust law.B. Fair UseThe notion of fair use in United States copyright law255 andthe narrower doctrine of fair dealing in UK, Canadian andAustralian copyright law, defines to what extent the digitalproperty owner can exclude others from use of the informationalproduct.256 Fair use and fair dealing allow use without the(personal) permission of the copyright owner; for this reason, somecall it a privilege. In A & M Records, Inc. v. Napster, Inc.257 andReimerdes, fair use arguments were unsuccessfully raised.However, there has been more success in the area of reverseengineering of software.1. Reverse Engineering for InteroperabilityTo ensure the diversity of digital identity we must argue fordiversity in software products.258 Fundamental to softwarediversity is the notion of interoperability, defined in the DMCA as:“the ability of computer programs to exchange information, and ofsuch programs mutually to use the information, which has beenexchanged.”259If a software engineer or developer constructs software thatbecomes the industry standard, that software acts as architecturefor communication and it becomes, in essence, a platform fordiscourse. In order to develop complementary and improvedsoftware products, in most cases, software developers will reverse255. 17 U.S.C. § 107 (1994).256. William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv. L. Rev.1659 (1988); Fitzgerald, supra note 109.257. A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)258. See, e.g., Associated Press v. United States, 326 U.S. 1, 20 (1945); TurnerBroadcasting Sys., Inc. v. FCC, 512 U.S. 622, 662-64 (1994) (“The basic tenet ofnational communication policy is that the widest possible dissemination of informationfrom diverse and antagonistic sources is essential to the welfare of the public.”).259. 17 U.S.C. § 1201(f)(4) (Supp. IV 1998).
engineer the industry standard software in an attempt to makesoftware that can be interoperable (conversant) with the industrystandard. To be able to successfully reverse engineer software, inmost instances, one must copy (and in some cases “borrow” partsof) the software, which is technically an infringement of thecopyright owner’s exclusive rights over reproduction.260In the United States, the courts have employed the fair usedoctrine to mediate this issue,261 while more recently, Congresshas legislated on the notion of interoperability in relation tocircumvention devices in the DMCA. Fair use defines theappropriate balance between a monopoly right given as anincentive for innovation and the public interest in the free flow ofinformation for a variety of cultural reasons.262In Australia the Copyright Law Review Committee (CLRC)263recommended adopting a more broad-based fair use right similarto the U.S. model in place of the existing narrower and morespecific fair dealing exceptions.264 However, the High Court ofAustralia, in the case of Data Access Corp. v. Powerflex ServicesPty. Ltd.,265 refused, in the absence of legislative direction, toendorse the legitimacy of reversing engineering in an instance ofliteral copying.266 The government has since enacted a (partial)legislative solution through amendment to the Copyright Act,1968 in 1999.267 The reproduction or adaptation of a computerprogram for the purpose of obtaining information necessary to theindependent creation of a new program or a device to connect toand interoperate with a program or any other program is, in260. See Anne Fitzgerald & Cristina Cifuentes, Interoperability and ComputerSoftware Protection in Australia, 4 Computer Telecomm. L. Rev. 271, 271 (1998).261. See generally Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992)(holding that the use of copyrighted computer work to gain understanding ofunprotected functional elements was fair use of the copyrighted work).262. See Fitzgerald, supra note 109, at 153.263. Copyright Law Review Committee, supra note 60, at Part 1.264. See, e.g., Copyright Act, 1968, §§ 40- 42 (Austl.) (discussing fair dealing forpurposes of research or study, criticism or review, and reporting news).265. [1999] H.C.A. 49 (Austl.).266. Id.267. See Copyright Amendment (Computer Programs) Act, 1999, (Austl.); AnneFitzgerald & Cristina Cifuentes, Pegging Out the Boundaries of Computer SoftwareCopyright: The Computer Programs Act and the Digital Agenda Bill, in Going Digital2000: Legal Issues for E-Commerce Software and the Internet 37 (Anne Fitzgerald etal. eds., 2d ed. (2000)).
- Page 80 and 81: with respect to “patents of inven
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engineer the industry standard s<strong>of</strong>tware in an attempt to makes<strong>of</strong>tware that can be interoperable (conversant) with the industrystandard. To be able to successfully reverse engineer s<strong>of</strong>tware, inmost instances, one must copy (and in some cases “borrow” parts<strong>of</strong>) the s<strong>of</strong>tware, which is technically an infringement <strong>of</strong> thecopyright owner’s exclusive rights over reproduction.260In the United States, the courts have employed the fair usedoctrine to mediate this issue,261 while more recently, Congresshas legislated on the notion <strong>of</strong> interoperability in relation tocircumvention devices in the DMCA. Fair use defines theappropriate balance between a monopoly right given as anincentive for innovation and the public interest in the free flow <strong>of</strong>information for a variety <strong>of</strong> cultural reasons.262In Australia the Copyright <strong>Law</strong> Review Committee (CLRC)263recommended adopting a more broad-based fair use right similarto the U.S. model in place <strong>of</strong> the existing narrower and morespecific fair dealing exceptions.264 However, the High Court <strong>of</strong>Australia, in the case <strong>of</strong> Data Access Corp. v. Powerflex ServicesPty. Ltd.,265 refused, in the absence <strong>of</strong> legislative direction, toendorse the legitimacy <strong>of</strong> reversing engineering in an instance <strong>of</strong>literal copying.266 The government has since enacted a (partial)legislative solution through amendment to the Copyright Act,1968 in 1999.267 The reproduction or adaptation <strong>of</strong> a computerprogram for the purpose <strong>of</strong> obtaining information necessary to theindependent creation <strong>of</strong> a new program or a device to connect toand interoperate with a program or any other program is, in260. See Anne Fitzgerald & Cristina Cifuentes, Interoperability and ComputerS<strong>of</strong>tware Protection in Australia, 4 Computer Telecomm. L. Rev. 271, 271 (1998).261. See generally Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992)(holding that the use <strong>of</strong> copyrighted computer work to gain understanding <strong>of</strong>unprotected functional elements was fair use <strong>of</strong> the copyrighted work).262. See Fitzgerald, supra note 109, at 153.263. Copyright <strong>Law</strong> Review Committee, supra note 60, at Part 1.264. See, e.g., Copyright Act, 1968, §§ 40- 42 (Austl.) (discussing fair dealing forpurposes <strong>of</strong> research or study, criticism or review, and reporting news).265. [1999] H.C.A. 49 (Austl.).266. Id.267. See Copyright Amendment (Computer Programs) Act, 1999, (Austl.); AnneFitzgerald & Cristina Cifuentes, Pegging Out the Boundaries <strong>of</strong> Computer S<strong>of</strong>twareCopyright: The Computer Programs Act and the Digital Agenda Bill, in Going Digital2000: Legal Issues for E-Commerce S<strong>of</strong>tware and the Internet 37 (Anne Fitzgerald etal. eds., 2d ed. (2000)).
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