Reverse Engineering

Reverse engineering is also sometimes known simply as “reversing” or as “forward engineering.” Reversing is deconstruction of an object to see how it works and duplicate or improve it. Reversing is most frequently associated with computer hardware and software, and depending on a factual situation can implicate patents, copyrights, and licensed software. This discussion addresses reversing of software.

Software reversing deconstructs a program’s machine code (the 0s and 1s sent to the logic processor) back into the source code from which it was written. The purposes of software reversing are to retrieve a program’s source code to learn how the program performs its operations, to enhance program performance, to correct a bug (a program error), to identify malicious content like a virus, or to modify a program for use with a microprocessor for which it was not originally intended. Reversing to copy or duplicate programs may violate copyright laws. Sometimes, a software license can expressly prohibits reversing.

Usually, the issues that arise in reversing disputes do not involve more benign forms of reversing such as under the Fair Use Doctrine, found in the US Copyright Act of 1976, 17 U.S.C. § 107. Our discussion of the Fair Use Doctrine is here. This is because if a matter rises to a court battle, the reversing that allegedly negatively affects the value of a plaintiffs’ original product will most likely be categorized as more egregious than “fair use.” For example, fair use does not permit violating an End-User License Agreement (EULA). Fair use can be grey; the line between fair use and copyright infringement can be difficult to determine in more complex cases.

Allegations of copyright violations are covered under Section 103(f) of the Digital Millennium Copyright Act (DMCA) (17 USC § 1201 (f) – Reverse Engineering), which specifically states that it is legal to reverse and circumvent the protection to achieve interoperability between computer programs (such as information transfer between applications). Interoperability is defined in paragraph 4 of Section 103(f).

It is also frequently legal to reverse-engineer an object or process that was obtained legitimately. If software is patented, this does not necessarily need to be reversed, since patents require a public disclosure of invention. But just because software is patented, does not mean the entire program is patented (or disclosed); there may be remaining undisclosed parts.

From a contractual standpoint, many – perhaps most – End-User License Agreements (EULAs) specifically prohibit reversing. Courts have found these contractual prohibitions to preempt the copyright law which expressly permits it.

In other words, as a general rule it may be illegal to integrate features from a reversed program into another program for commercial or non-commercial use, but legal to enable interoperability under Section 103(f).

Legal liability and protection for reversers and their consulting clients or employers is an ever- evolving area of law because it can be so fact-driven. Reverse engineering attorneys and attorneys for the commercial enterprises who engage them must have extensive knowledge of reverse engineering law to defend or advance the rights of our clients. Our attorneys have over thirty years of experience generally, and cutting edge experience that has evolved with this heavily fact-specific field of law. Our reverse engineering attorneys are committed to protecting our clients’ commercial interests. Located in Chicago and Elmhurst, Illinois, we have won judgments or settlements for our clients in disputes or suits throughout the Chicago area. To arrange for a consultation with one of our attorneys, contact us online or call at 630-333-0333.

The attorneys at Lubin Austermuehle have over thirty years of experience defending and prosecuting non-compete, trade secret and restrictive covenant lawsuits. We are committed to fighting for our clients’ rights in the courtroom and at the negotiating table. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated non-compete and trade secret and covenant not to compete cases for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call at 630-333-0333.