Reverse Engineering IP

Article excerpt

   INTRODUCTION    PART I: SAMPLING PATENT TO REMIX COPYRIGHT: THEORY IN PRACTICE    PART II: THE INTELLECTUAL PROPERTY MONOPOLIES       A. Tale of Two Regimes       B. Patent          1. Policy Considerations and the Law       C. Copyright          1. Policy Considerations and the Law          2. The Copyright Act          3. Fair Use          4. A Closer Look at Originality          5. Overprotection and Misuse             a. Overprotection             b. Misuse    PART III: REVERSE-ENGINEERING       A. Reverse Engineering in the Traditional Manufacturing       Context       B. Reverse Engineering in the Digital Context       C. Reverse Engineering & Copyright          1. Fair Use          2. The Digital Millennium Copyright Act       D. The Chip Act    PART IV: THE IP AXIS: WHERE DISTINCT REGIMES CONVERGE    CONCLUSION 

INTRODUCTION

"Plagiarism is necessary, progress implies it." (1)

Michalis Pichler

With the advent of the Internet and digital technology, the twenty-first century has ushered in a quantum increase in the ways to create, disseminate, and commercially exploit creativity. Digital technology allows anyone to create perfect digital copies of protected works in the comfort of their homes and to distribute them to tens, hundreds, thousands, and even millions of people with the click of a hyperlink via a handheld device. Indeed, copyright touches more ordinary people in substantial ways in this age of information than at any other time in American copyright history. (2)

The copy-and-paste reality and firmly entrenched user expectations to access, reuse, remix, and share creative output instantly via e-mail, blogs, and social networks are far afield from what Congress originally contemplated when it responded to its constitutional call and enacted the first version of the Copyright Act to solve the public goods problem inherent in inexhaustible goods like intellectual property. (3)

Art forms that rely primarily on appropriation are also often at odds with the current copyright framework. For example, hip-hop music pioneer Public Enemy (4) (P.E.] incorporated hundreds of recognizable and unrecognizable aural fragments into each of their songs before courts began to sanction aggressively the practice of music sampling. (5) Their status as a trailblazer in the practice of digital sampling was mostly a result of P.E.'s "collage" style of music creation. (6) P.E. incorporated bits and bytes (7) of pre-existing material to create new musical tracks over which they rapped about political and social issues of race, racism, economics, violence, police brutality, and religion. (8) However, their musical collage style of using samples as the building blocks of their music production was "outlawed" as an infringement. (9) That determination forever changed the production of hip-hop music or any music that incorporated direct samples of copyrighted works, even if those copies and adaptations were used for some arguably transformative purpose. (10)

For appropriation art of all types to survive an infringement inquiry, the resulting work must be creative, original, and transformative. However, the line between uses deemed infringing or fair is far from bright, at least in ex-ante determinations by second-generation creators who rely on copyright limitations in the creative process. Accordingly, this Article examines the role that "reverse engineering" and other policies and doctrines have played in the inventive context to protect the "space" such second-generation innovators require to build upon and around existing inventions that justify the patent monopoly. Further, this Article explores how patent policy better protects and encourages that space than does copyright, theoretically and in practice.

This Article asserts that copyright reform initiatives should "sample" (that is, borrow from) patent policies that protect access for further innovation to "remix" (that is, inform and reform) copyright law for the same end in the creative context. …

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