Reverse Engineering IP

By Evans, Tonya M. | Marquette Intellectual Property Law Review, Winter 2013 | Go to article overview

Reverse Engineering IP


Evans, Tonya M., Marquette Intellectual Property Law Review


   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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Reverse Engineering IP
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.