Copyright Law and Reverse Engineering: Have Recent Decisions Take the Fair out of Use
![handle is hein.journals/baylr46 and id is 195 raw text is: COPYRIGHT LAW AND REVERSE ENGINEERING: HAVE RECENT DECISIONS
TAKEN THE FAIR OUT OF USE?*
INTRODUCTION
With the technological advances of the computer software industry
growing at an almost exponential rate of speed, copyright law has had
difficulty keeping pace with the industry's new developments. One
such development is reverse engineering.1 Because of its utility in an-
alyzing new products, reverse engineering has become a standard,
even widespread, industry practice for high technology fields such as
computer software.2 Decompilation enables a programmer to read
and understand the instructions in a program, which facilitates and
expedites the development of similar or compatible products to com-
pete with the decompiled program.
During reverse engineering, advanced programs, called decom-
pilers or disassemblers, are used to translate an assembly language, or
object code3 into a human readable language, or source code.4 To
accomplish this, a computer must copy the program into memory,
translate the program, and save the translated source code back into
memory or produce a paper copy of it. Determining whether the cop-
ies and derivative translations produced during reverse engineering
violate the copyright law has become [t] he latest generation of head-
aches for the courts.5
*I would like to extend my appreciation to Prof. Melissa Essary for her guidance and
assistance in completing this article. An earlier version of this article was entered in the
ASCAP Nathan Burkan Memorial Competition in June, 1993.
'The Supreme Court has defined reverse engineering as starting with the known prod-
uct and working backward to divine the process which aided in its development or manu-
facture. Kewanee Oil v. Bicron Corp., 416 U.S. 470, 476 (1974). For simplification, this
article uses the terms decompilation and reverse engineering interchangeably.
'See Gary R. Ignatin, Comment, Let The Hackers Hack: Allowing the Reverse Engineering of
Copyrighted Computer Programs to Achieve Compatibility, 140 U. PA. L. REv. 1999, 2010 (1992).
'Object code is machine readable, binary code, represented on paper as a series of ones
and zeroes. The ones and zeros represent on and off states of switches on a computer
chip. Based upon the switches, the chip generates a serious of pulsating signals which
conveys messages to the computer. Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510,
1515 n.2 (9th Cir. 1992).
'Source code is a set of alegbraic-like instructions that are written by a programmer and
entered into a computer which then translates it to object code. Michael A. Epstein, Mod-
ern Intellectual Property 372 (2d ed. 1984 & Supp. 1992).
'Richard C. Reuben, What's New in Intellectual Property, ABAJ., Jan. 1993, at 75.](ViewImageLocal?handle=hein.journals/baylr46&div=13&collection=&method=preview&ext=.png&size=3)
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Copyright Law and Reverse Engineering: Have Recent Decisions Take the Fair out of Use
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