Reverse Engineering Software for Interoperability (Legal Update – July 2010)

This is a hot issue, so whether you have a software EULA or SAAS contract protecting your software, you may want to learn more about the state of the law of reverse engineering software (i.e. looking under the hood). In essence, most software and SAAS contracts specifically state that the user is prohibited from reverse engineering the software; this is something that should be addressed in the contract as copyright law does not provide this type of protection. There have historically been no real exceptions to the contractual prohibition on reverse engineering, but in the past decade or so there has been some changes or erosion to this protection (depending on your perspective). 

1) Legal Update July 2010 (by the Copyright Office (US)): Actually, the Library of Congress added some new exemptions to the Digital Millennium Copyright Act, which originally provided that it was illegal to circumvent technological measures that effectively controlled access to a work (i.e. don’t work around security that protects technology).

• The new exemptions are (I am paraphrasing here) (a) getting around access controls to enable an owner of a smart-phone to access software apps on the smart-phone that were independently created (i.e. not in the Apple app store) and (b) getting around access controls to enable an owner of a smart-phone to access another network (i.e. using an iPhone with another carrier). [US Copyright Office Information on this issue]

2) Reverse Engineering Case Law (US): Without going into a lot of detail (and there is a lot of detail), there are situations when reverse engineering may be allowed (usually based on the concept of fair use’), and these cases provide some guidance (at least from the perspective of the Electronic Freedom Foundation). [the EFF’s view] 

3) European Perspective: In Europe, there has been a law on the books for a while that generally provides for reverse engineering for interoperability. [European perspective]
I suggest that all software based businesses, whether your provide on-premises software or SAAS, should learn a little bit about this issue as your partners, competitors and customers may know more about this than you, and may be legally reverse engineering your software — just a suggestion for any company looking for investors or venture capital funding. 

Resources: 

Fair Use [my blog on this topic]

Reverse Engineering Software Article from India [Article]