Magazine article Information Today

Reverse Engineering a Controversy: Technology and Content

Magazine article Information Today

Reverse Engineering a Controversy: Technology and Content

Article excerpt

In what may be a surprise to some, not everything that the information industry creates can be copyrighted. Copyright protection only applies to works that are original and expressive, not to works that consist of facts, ideas, concepts, or processes. A classic, and still controversial, example of this distinction are "white pages" telephone directories. A 1992 Supreme Court decision held that the directory entries (name, address, and phone number) were facts and that the process (publishing in alphabetical order) was not creative enough to warrant copyright protection. Dozens of free online white pages Web sites and proposed database protection legislation are the result of that decision.

This principle also extends to the ideas, facts, concepts, or processes contained within an otherwise copyrighted work. I just finished reading Philip Roth's new book, The Plot Against America, which builds its story from certain facts (e.g., life in pre-WWII New Jersey, Roosevelt's pre-war policies, prominent isolationists) as well as concepts (such as America falling under German influence and not entering the war). While the work is quite expressive and obviously protected by copyright, this does not prevent me from crafting my own story about pre-war America using these same underlying facts.

Technology and Content

A more complex situation arises when dealing with digital information and software. Many (if not most) digital products will contain both copyrighted elements and noncopyrighted elements. Unlike reading a book, however, accessing the noncopyrighted content may not be practical due to technological measures or licensing restrictions. The Digital Millennium Copyright Act (DMCA) strengthened these restrictions by making it illegal to circumvent a technology-protection measure.

A controversial solution to this situation that is often applied in software applications is reverse engineering. This process generally involves digging down into an application to identify its underlying source and object codes in order to separate the protected elements from the unprotected elements. By then using the knowledge gained from the code and the unprotected elements, developers create new products or variations on the original products.

Lexmark Printers

This latter circumstance was recently tested in a closely watched case involving Lexmark printers and toner cartridges. Lexmark sold toner cartridges containing an encoded microchip that interacts with the printer's software. Absent this interaction, the toner cartridge would not work. Lexmark's goal in developing this system was to restrict the use of third-party toner cartridges and the refilling and reselling of Lexmark toner cartridges. One such third party, Static Control Components, Inc. (SCC), reverse engineered the source code on the microchip (but not the printer software) and offered an alternate chip that could be used with third-party and refilled cartridges.

Not surprisingly, Lexmark sued SCC for both copyright infringement and violation of the DMCA's anti-circumvention provisions and was successful in obtaining an injunction against SCC's actions. However, in October 2004, a federal appellate court threw out the injunction and found that SCC had neither violated any Lexmark copyright nor violated the DMCA.

The 35-page opinion is quite technical, but it makes a number of points worth knowing. In addressing the copyright issue, the court noted that some elements of a software program are dictated by practical realities such as hardware standards, software compatibility, programming, and industry practices. …

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