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Computer Software

Reverse Engineering

Reverse engineering is when a product is studied or examined to find out how it was made in order to produce (manufacture) a similar product, or a product that achieves an equivalent result. Essentially, it is copying a product and making another product that is similar. This practice is allowed for some types of copying, such as of semiconductor chips, under the federal Semiconductor Act. This Act specifically provides that chip peeling is an allowed exception. However, reverse engineering (copying) of computer programs is not allowed for computer programs by the 1976 Copyright Act. Chip peeling will not always work for a computer program and neither act includes copying code as exceptions in most cases. Where courts have allowed reverse engineering of computer code, is in instances where “fair use” may be found.

To determine if copying is allowed under the fair use doctrine, the court may consider four elements:

  • Intent and nature of use: Whether the work was copied for a commercial purpose.
  • Features of the copyrighted work: How much of the copyrighted work is protected by law and how much of the protected work was copied, versus unprotected components of the work.
  • Amount or size of copying: Whether the entire work was copied, or a small portion.
  • Probable effect on market of copyrighted work: Was the commercial value of the copyrighted work negatively affected as a result of the reverse engineering?

If the court weighs the facts of the case and determines that the reverse engineering of a computer software product meets the elements of the fair-use doctrine, the copying may be permitted.

Open Source

Usually, computer software is developed by a company or group of persons, who create the software’s source code. This code is readable by humans and licensed to the company. Next, the code is made into object code, which only computers (machines) are able to read. This way, the company can sell the object code software to consumers and still own the source code. Therefore, any updates to the software will have to be purchased by the consumer from the company (who owns the source code). Alternatively, when computer software has open source code, the company does not keep the source code under their control. Consumers have access to both the source code and the object code. This means that consumers will be able to change the software on their own without having to go through the company (by purchasing upgrades or updates).

Typically, when people use a source code they must agree to a click-wrap agreement before they may use the software. Generally, the software is free to download from the internet if the click-wrap agreement is accepted by the programmer. There are different types of click-wrap agreements, ranging from including copyright information on any modified software to sending any software modifications/improvements back to the company. If the click-wrap agreement is not followed, there may be a licensing violation, which may lead to litigation for copyright infringement.

Copyrightability of Software

Computer software or programs are regarded as “literary works” and therefore protected by copyright law. The federal Copyright Act protects computer programs after they have been written because they are considered an expression of ideas. Screen displays generated by a computer program may also be protected by copyright law as audiovisual works. It depends on the type and originality of the screen display. Therefore, the copyrightability of computer programs and products of those programs may be very complex and fact specific. For these reasons, it is important to speak to an attorney knowledgeable in intellectual property law to discuss your issues, answer your questions and help you make decisions with your best interests in mind.

Patents on Software

The patentability of computer programs has been a matter of debate and inconsistency in the courts; the federal Patent Act does not specifically provide patents for software. However, the US Patent and Trademark Office has issued patents for computer programs and the courts have usually upheld those patents. As a result, computer software is patentable as long as the basis of the program is more than a mathematical principal or equation; this rule is contained in 35 U.S.C. §101. According to statute and past rulings, the court looks at the subject matter of the computer program to determine whether it is patentable under federal law.

Learn More: Reasons to Contact an Intellectual Property Attorney

To read and print out a copy of the checklist, please follow the link below.

Reasons to Contact an Intellectual Property Attorney

You can download a free copy of Adobe Acrobat Reader here.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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