Reverse engineering court decision

Robert W. Cunningham rwc_2001 at
Sun Feb 4 21:59:10 CST 2001

"Paul E. Merrell" wrote:

> "Hypothetically, similar efforts taken by others to
> reverse-engineer Microsoft Windows could be deemed justifiable
> if the aim of those efforts were to make other companies'
> programs, designed for Windows, run on an operating system
> other than Windows. This assumes that the 9th Circuit ruling
> holds up."
> <>

Unfortunately, this decision applies directly only to those bringing such cases within the
California 9th Circuit Court.  While other courts may "take note" of this decision, it has not yet
risen to the level of a "precedent".

Unless, of course, the case gets appealed all the way to the Supreme Court, they decide to hear
it, and they then decide to affirm the decision.  Then (and only then) would the decision become
the law of the land.  Until that time, it will likely first have to be pursued on a case-by-case
basis in all other Circuit Courts.  Which means we can expect all similar cases to avoid the 9th
Circuit like the plague so long as they have other venues to run to.

As Paul mentioned in the quote he selected, the key item involves moving an application to a
different platform.  Application "portability" may legally no longer require "porting"!  It may
instead allow for "OS Compatibility Layers" to be written instead.  This may also drive a needed
wedge into the notion of migrating applications into the OS, a strategy MS has evolved into a fine

This affects far more than Wine:  One project that comes to mind is MAME (games).  There are many
more seemingly similar projects that are NOT affected, such as MOL(Mac-on-Linux), Win4Lin, Plex86,
VmWare and probably several others that actually run the target OS, not emulate (clone) it.

An extreme interpretation of this decision could be as follows:  If I need a reason to legally
clone a new feature in some market-leading desktop OS, all I need to do is find an app (any app)
that uses that feature, then declare my intent to make that app run under some other (any other)
OS.  It does not matter if the feature being emulated is "documented" or not.  Taken further, it
may even be possible to dispose of the specific API used to implement the feature, and use a
different one instead.

Eventually (assuming this decision survives), the courts will see that ALL such forms of reverse
engineering should be legal WITHOUT the necessity of an app to port.

However, this notion still needs to be more fully explored via additional cases before its full
scope can be determined.  Presently, the scope appears to be very restricted:  The article points
out that the DeCSS decision would probably not be affected in any way.  In the current
environment, this is probably true.  But what if you can convince the courts to view DVD "content"
as a "program"!  While this may seem obviously true to technical folks, especially those who
create multimedia apps and content for a living, it may take many visits to court to properly
communicate this understanding to the legal system.

Anyway, since most of the available content security systems ARE software, and MS has already
migrated theirs into the latest versions of Windows, this entire issue already has the potential
to snowball completely out of the control of OS and content companies, and possibly even Congress

With the major media companies trying to tie software protection and content protection together
under copyright law (via laws such as DMCA and UCITA), this may be just the wedge needed to pry
them back apart.

One can only hope, and patiently wait for the court decisions...

(IANAL, but I'm Perry f*ing Mason in my dreams.)

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