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Samuelson in Defense of Reverse Engineering
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posted by mpawlo
on Wednesday July 24, @08:52AM
from the linking-liability dept.
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In an upcoming article, Berkeley law professor Pamela Samuelson argues why the California Supreme Court should (in the DVD CCA v. Brunner case) reject DVD Copy Control Association's ("DVD CCA") theory that breach of a mass-market license clause forbidding reverse engineering is an improper means to obtain a trade secret. Trade secrecy law in California states that reverse engineering is a lawful way to acquire a trade secret.
Brunner had published a copy of DeCSS on his web site. DeCSS is a computer program that makes it possible to create DVD viewers for Linux, regardless of the DVD encryption algorithm Content Scrambling System ("CSS"). The DVD CCA filed a complaint against Brunner alleging violation of the California Uniform Trade Secrets Act. The Supreme Court has agreed to hear the case (Supreme Court No. S102588.).
Read Samuelson's article (PDF).
See also The Openlaw/DVD forum hosted by the Berkman Center.
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Samuelson in Defense of Reverse Engineering
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The Fine Print:
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While I certainly agree with Prof. Samaulson's views that reverse engineering is and must remain legal, I'm somewhat alarmed that everyone seems to have taken for granted that the reverse engineering breached an enforcable clause of the EULA on the Xing DVD player, even if clickwraps are generally enforcable (which courts are divided on). Subsequent transfers of the "secret" can only be misappropriation if the original posting to the internet by Johansen was misappropriation. This has never been established, nor is a California court the appropriate venue to decide the matter.
First, it has never been established that Jon Johansen even accepted the EULA which purports to restrict his RE rights. Johansen has publicly claimed, credibly in my opinion, that he did not and could not possibly have accepted it. Here is one post [harvard.edu] to the dvd-discuss mailing list where he makes this claim. In short, he did not and could not have even installed the XingDVD player because he sues Windows NT, which it doesn't run on.
Second, Johansen lives in Norway, and under Norwegian copyright law (see reference in the above linked post), the right to reverse engineer software for interoperability purposes is statutory and cannot be given up by contract by black letter law: "Bestemmelsene i denne paragraf kan ikke fravikes ved avtale."
Thus the Xing EULA is unenforcable under Norwegian law. Since it is unenforcable. A forum selection clause contained within an unenforcable contract cannot be controlling, so Johansen's actions must be analyzed within the context of Norwegian law. His reverse engineering placed the circumvention method into the Norwegian public domain in accordance with Norwegian law.
The entire DVD-CCA case is a bizarre legal exercise because the basic facts of trade secret misappropriation by Johansen in the first instance have never been established, nor is it clear that a California court has any authority to tell Norway what ideas are or are not in the Norwegian public domain.
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Humanity has the stars in its future, and that future is too important to be
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- Isaac Asimov
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