Legality of Reverse Engineering of a Computer programme: Does it amount to Copyright infringement

THIS ARTICLE WAS WRITTEN BY BITTHAL SHARMA A STUDENT OF RAJIV GANDHI NATIONAL UNIVERSITY OF LAW (RGNUL)

Reverse Engineering

Reverse Engineering is a process through which a machine or any man-made object is deconstructed completely in order to acquire knowledge on how it functions. Reverse engineering of a software is conducted for numerous purposes, from extracting knowledge about the working of the software to applying the same to one’s own software to make it function properly. In the computer jargon, reverse engineering involves reversing a program’s machine code back into the source code, which was the algorithm into which the program was written and programmed in initially.

Is it Legal?

Since reverse engineering involves disassembling a software already made by some other entity in order to gain some knowledge with regards to its functionality, it can amount to copyright infringement due to the fact that the software was constructed by programming it through a source code which is protected through copyright. So, buying a machine and decompiling it in order to extract some information behind the working of its software may amount to copyright infringement in some cases depending whether the country in which it is performed allows it or not.

United States

In the U.S., Section 103(f) of the Digital Millennium Copyright Act (DMCA)specifically states that it is legal to reverse engineer and circumvent the protection to achieve interoperability between computer programs, for ex-information transfer between applications. Interoperability is defined in paragraph 4 of Section 103(f). In U.S., it is legal to reverse engineer and decompile a software or a program unless it is used for a commercial purpose and not for personal fair use. Another pre-requisite is that the thing which is reverse engineered must have been procured through legal means and the person must have been deemed to be a lawful owner of the same.Moreover, Section 1201(f) of the Copyright Act gives some relief to a person involved in reverse engineering a computer program as it expressly allows for bypassing technological measures which regulate one to access a computer program in order to identify and analyse the program to gain interoperability with a different program.In the case of Atari Games Corp. v. Nintendo of America, reverse engineering was held as a statutory fair use exception to copyright infringement by the court.The court stated, in accordance with Section 107 of the Copyright Act, “The legislative history of section 107 suggests that courts should adapt the fair use exception to accommodate new technological innovations.” The court also noted “A prohibition on all copying whatsoever would stifle the free flow of ideas without serving any legitimate interest of the copyright holder.”. Therefore, the court held the act of reverse engineering to extract information with respect to software to be a permissible and legitimate act within the boundaries of fair use enumerated under Section 107 of the Copyright act. On various occasions, the courts in U.S. have allowed reverse engineering of computer software for the sole purpose of interoperability with the condition that the same has been acquired lawfully. This principle was established by the court in cases such as Sega Enterprises v. Accolade and Sony Computer Entertainment, Inc. v. Connectix Corpwhere it was held that intermediate copying for interoperability comes under the ambit of ‘fair use’. In other cases such as Computer Associates Int’l, Inc. v. Altai, Inc, Lotus Dev. Corp. v. Borland Int’l, Inc. and Lexmark Int’l Inc. vs. Static Control  Components, it was pronounced by the courts that copying some aspects of a computer software does not amount to copyright infringement when the same is done in order to achieve compatibility.

European Union

Reverse engineering in European Union(EU) is governed by the EU Directive 2009/24 under which certain conditions are laid down which allows for decompilation of a computer program. Article 5 of the Directive allows a person having a right to use a copy of a computer program to observe, study or test functioning of the program without taking authorization from the owner of the program in order to find out the functioning including the ideas and principles behind the same.Moreover, Article 6 lays down that the authorization of the right holder is not required wherein decompiling the program is essential and indispensable to have interoperability with another completely independent computer program.But this is permissible only when the person involved in reverse engineering the program is duly authorized to do so. Thus, if a person who has not lawfully acquired the program makes some changes in it without any prior authorization to achieve an objective other than having interoperability between two programs is said to infringe the copyright of the right holder of the software. In SAS Institute Inc v. World Programming Ltd, the European Court of Justice limited the scope of copyright with regards to the computer software by prioritising technological progress industrial development over protection of a computer program by a copyright. It held that decompilation of a program would be interdicted if the sole aim of such an act is to harm the original owner of the software. But it would be legal if it is done to achieve interoperability between the systems.Article of the 1991 EU Computer Programs Directive also allows for reverse engineering for circumventing the copyright protection to achieve interoperability between two computer programs provided both of them are independent. However, it prohibits decompilation for creating a similar product which would be competing in the market with the original program of the owner.

India

The jurisprudence relating to reverse engineering of a software is developed in India as compared to other Western and European countries. However, Section 52(ab) of the Copyright Act, 1957 does refer to it by stating that an act necessary to obtain information essential to achieve interoperability of a computer programme which has been created independently without any links to the original program would not constitute copyright infringement provided that the same has been acquired lawfully and it was not readily available.