Reverse engineering refers to any activity that analyzes a product to determine either how it works or the principles underlying its functioning. Starting from the product itself, an attempt is made to derive an earlier stage in the design and development process; this could be a detailed design, a high-level design, or a functional specification. Conventional engineering starts from some sort of a specification (possibly a design or a set of desired functions) and works to create a product. Reverse engineering is the opposite. It is often used to contribute to a company’s research and development activity, supporting the development of new products or the improvement of old products. Products that are analyzed in this way include motor cars, electronic goods, integrated circuits, software, and drugs.
The legality of reverse engineering someone else’s product is a complex issue and will depend on many things including the jurisdiction where the activity takes place and the type of product being analyzed. However, when applied to a nonpatented product, it is usually acceptable as long as care is taken not to infringe copyright or trade secret laws. If a product is patented, then the invention, as defined in the patent, cannot be reproduced. However, a patent is unlikely to specify the functionality, but rather the mechanism, for implementing that functionality. So, if reverse engineering can legally reveal the functionality, which is then implemented in a different fashion, this may well be legal. Essentially, copying of any “document” (including program code) and obtaining information in any illegal way are not permitted.
A famous example of reverse engineering formed the basis of the early development of the personal computer (PC) industry. In the early 1980s, IBM introduced its PC. Its rapid success meant that many other companies wanted to market products with the same functionality, but to be successful, such machines needed to be capable of running the same software. The main barrier to entering this market was the PC BIOS—a program embedded in a chip that controls the computer’s boot process. Copyright law did not allow copying of the PC BIOS: the only option was to reverse engineer it.
Specifically, copyright law does not allow the expression of an idea (i.e., the actual program) to be copied, but does not restrict the copying of functionality. The BIOS was studied carefully by a team of engineers to determine precisely what it did and to create a specification. Another team, which had no knowledge of the original program, then developed a new BIOS according to this specification. This is known as a “clean room” approach: the second team is not “contaminated” by knowledge of the original program, so they cannot copy it. Using a BIOS developed in this way, many companies were able to market an “IBMcompatible PC.” These products have now evolved into the PCs we use today.
The legal issues are particularly complex in the case of software or other digital media, particularly with respect to interoperability. This is the property of different products or systems that allows them to work together—this often means that they must be able to process data stored with the same file structures. From a consumer viewpoint, interoperability is considered to be a good thing as it allows the development and marketing of a wide range of competing products, increasing both choice and value. If a company is unwilling, or unable, to provide details of file structures for interoperability, then it may be possible to obtain them through reverse engineering.
In the United States, the Digital Millennium Copyright Act generally forbids the circumvention of technological protection measures (Digital Rights Management), even when these measures give a product protection beyond the rights specified by law. However, it also specifies very limited circumstances under which a competitor may attempt this in pursuit of interoperability. In the European Union, the Copyright Directive has a similar effect. In this area of law, there is a clear conflict between the rights of consumers and those of intellectual property holders.
Another example of reverse engineering has been in the manufacture of replacement ink-jet printer cartridges. Typically, manufacturers of ink-jet printers include software in the printer which invokes a series of communications (known as “handshaking”) with the printer cartridge to recognize the printer as one that they have manufactured. A chip is included in the cartridge that has this capability programmed into it. This makes it difficult for competitors to develop compatible cartridges—a problem of interoperability. This is of particular interest to consumers because in many cases, the cost of a cartridge is as much as a quarter of the cost of the printer itself. Many cartridges have now been reverse engineered and competing products offered at substantially lower prices. The original manufacturers have unsuccessfully taken their competitors to court to find that the reverse engineering of their products was legal under the Digital Millennium Copyright Act.
In addition to the above examples, reverse engineering has been used for generating documentation for products where this has been lost or is nonexistent; creation of illegal copies of products; the manufacture of obsolete parts; and the reduction of product development time.
While reverse engineering is seen by many businesses as a valuable, possibly essential, tool, its legal status is likely to change over time. This status is highly complex because it is determined by a combination of intellectual property, antitrust (or competition), and consumer protection laws. In most jurisdictions, all of these laws are being strengthened, but intellectual property laws tend to be in conflict with the other two. This makes the future status of reverse engineering highly uncertain. However, whatever its status, it is clear that many companies will continue to use it as a way of making themselves more efficient and more competitive in the marketplace.
- Jeff Jarvis, What Would Google Do? Reverse Engineering the Fastest Growing Company in the History of the World (Harperluxe, 2009);
- David C. Musker, “Reverse Engineering,” www.jenkins.eu (cited March 2009);
- Vinesh Raja and Kiran J. Fernandes, Reverse Engineering: An Industrial Perspective (Springer, 2008);
- Pamela Samuelson and Suzanne Scotchmer, “The Law and Economics of Reverse Engineering,” Yale Law Journal (v.45/10, 2002).
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