It is axiomatic that copyright protects expression and not ideas, but the dividing line between the two, particularly for computer programs, nothing is murky at best. The functionality of a program is not protected Software companies typically market software in object code form, in part, to avoid revealing trade secrets. 61 Publication in object code form also makes it more difficult to reproduce the protected expression in the underlying source code, since the former does not contain the source code's written comments and program descriptions. 62 To reconstruct the structure and logic of the original source code, the object code must be run through a decompiler or disassembly program, which translates the machine language back into human-readable code. The process of decompilation or disassembly involves loading the object code program into a computer, making a copy of the program in the computer's memory, manipulating the object code in various ways to reconstruct the source code in which the program was originally written, and may also require making one or more printouts of the program in either object or source code version. 63 The reconstruction of the original source code from the object code is like doing a puzzle. The decompiler or disassembly program is used 61. D. Davidson, mmon Law, Uncommon Software, 47 U. Pitt. L. Rev. 1037 (1986). 62. See D. Davidson, Protecting Computer Software: A Comprehensive Analysis, 1983 Ariz. St. L.J. 611, 696. 63. Lake, Harwood & Olson at 4. · 28 to search the original for known or anticipated instructions. When discovered, the instructions form the basis for additional assumptions about other instructions believed necessary to follow from those just discovered. 64 The process is not straightforward, however, and the human-readable version requires additional human reverse engineering to figure out what the program does. 65 The question remains, though, whether reverse engineering appropriates more than unprotected idea in the attempt to replicate the functions of another program. 1. Protected expression in computer programs In the Copyright Act, computer programs are protected in the same way as traditional literary works. 66 Subject to limited exceptions in sections 107 and 117, the owner of copyright in a computer program has the exclusive rights in section 106 to reproduce and publicly distribute copies, prepare derivative works including translations, and publicly perform or Copyright protection extends beyond the literal display the program. expression of a program, and output formats. 69 67 to external features like screen displays, 68 64. W. Patry, The Fair Use Privilege in Copyright Law, 400 (1985). 65. D. Davidson, Common Law, Uncommon Software, 47 U. Pitt. L.Rev. 1037, 1060 (1986). 66. See 17 USC (102(a)(1). 67. Whelan v. Jaslow, 797 F.2d 1222 (3rd Cir. 1986). 68. Digital Communications Associates, Inc., v. Softklone Distributing Corp., 659 F. Supp. 449 (N.D. Ga. 1987). 69. Broderbund Software, Inc. v. Unison World, Inc., 648 F. Supp. 1127 (N.D.Cal. 1986). 29 The process of decompilation produces a human-readable pseudo 71 source code which, although it does not have the written comments, and same names of variables, routines, labels and original data tables of the original source code, contains the core of expression of the original and the same interrelation of programming elements. 70 If it were recompiled or reassembled it would operate the computer in virtually the same way as was intended by the original source code, and could be considered a copy. The copyright in a program does not prevent a second party from taking ideas from an original program, but he may not copy, adapt or translate any of the protected expression of the first program. To analyze the internal structure, sequence and organization of a program requires fairly detailed study, and to the extent such evaluation requires reproduction of, or preparation of a derivative work based on that program, it arguably infringes the original work. Hubco Data Products Corp. v. Management 73 Assistance, Inc. Moreover, at least two decision have held that the reproduction of a work as an intermediate step in the creation of a 72 competing work is an infringement. Walt Disney Productions v. Filmation Associates, 74 and Bell South Advertising & Publishing Corp. v. Donnelley Information Publishing, Inc. 75 70. D. Davidson, Protecting Computer Software: A. Comprehensive Analysis, 1983 Ariz. St. L.J. 611, 697-98. 71. Id. 72. Whelan v. Jaslow, 797 F.2d at 1238-39. 73. 219 USPQ 468 (D. Minn. 1984) (decompilation of software is copyright infringement). 76 78 But other decisions, at least in dicta or by implication, seem to permit software decompilation. Vault Corp. v. Quaid Software Ltd., NEC Electronics, Inc. v. Intel Corp., 77 and E.F. Johnson Co. v. Uniden Corp. However, these intimations were not necessary to the decisions in the cases, and may not be consistent with traditional software protection. 79 The argument has also been made, in the context of amendment 11 to Article 5 of the European Community software directive, which would permit reverse engineering, that such a narrow scope of software protection substitutes the sui generis approach for the full scope of protection accorded traditional works. 80 Proponents of this approach contend that exclusions from protection are necessary to permit development of programs that will interoperate with existing programs, and that copyright principles dictate that the public should be permitted to copy programs to study the underlying ideas to advance scientific progress. 81 Finally, it is unclear whether decompilation is a fair use or is permitted as an essential step in the utilization of a program. One could argue that a reverse engineer engaged in academic research, or a computer science professor performing classroom analysis with his students, are within the fair use provisions. Section 107 might even allow a researcher to print out a program, or if a printout is in machine code, to take steps program. 82 to change the machine code into a higher-level Copyright owners argue that the decompilation of a program to produce a competing product is not a fair use: the nature and purpose of the use is entirely comercial; the copyrighted source code is an unpublished work subject to a narrow scope of fair use; the entire work is copied; and harm to the market for the original is presumed with commercial use. When a program is input from external storage into a computer for operation, a number of separate copies of the program are created in various components of the computer's memory. Section 117(1) permits the creation of these copies for purposes of executing the original program on one computer at a time. Copyright owners argue that the only purpose of section 117 is to allow the owner of a copy to copy and modify it for 83 internal, and not competitive use of a program. Thus copyright owners assert that under section 117 a new copy or adaptation may be created only as an essential step in the utilization of a program or for archival purposes. 2. Public disclosure It has also been maintained that software is the first and only copyrightable work which is not "read" or "played" when it is used, and as 82. D. Davidson, 47 U. Pitt. L. Rev. at 1092-93. 83. Final Report of the National Commission on New Technological Uses of Copyrighted Works 13 (1979). |