Re: DSC v. Pulse

On 3/16/99, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> Those interested in software copyright law should see the unfortunate
> Federal Circuit opinion in DSC v. Pulse, issued last week. The court
> concludes that section 117 does not protect those who buy copies of
> hardware containing a program if a license agreement is attached
> limiting the buyer's rights, because the buyers are not "owners" in that
> case. [By contrast, buying the same hardware from a third party does
> make you an owner, and section 117 does apply]. The court also limits
> Sega v. Accolade, strongly suggesting that temporary reproduction of a
> copyrighted program in an effort to identify the uncopyrightable
> components and build a compatible program is *not* a fair use.
>
> Those interested in the reverse engineering right should be very
> concerned by this case.

You know, I read it a little differently. I agree as far as the Section 117 issue, but it appears to me that, with respect to reverse engineering, the Court seemed to confirm that copying for the purpose of reverse engineering is okay; the problem here is that the copying was done for purposes of demonstrating (to customers, I think), that the reverse-engineered version worked as well as the original.

To quote the court:

   "The district court dismissed DSC's direct copyright infringement    claim on the ground that Pulsecom's conduct was excused by the    affirmative defense of fair use for reverse engineering, as discussed    in Sega. The Sega case, however, does not stand for the proposition    that any form of copyright infringement is privileged as long as it    is done as part of an effort to explore the operation of a product    that uses the copyrighted software. On the basis of DSC's evidence    at trial, Pulsecom's activities in creating copies of the POTS-DI    software on its POTS cards by using the RBOCs' Litespan systems does    not qualify as a "fair use" under the Sega analysis. DSC's evidence    showed that Pulsecom representatives made copies of the POTS-DI    software on Pulsecom POTS cards as part of the *ordinary operation of    those cards, not as part of an effort to determine how the Litespan    system worked. Rather than being part of an attempt at reverse    engineering, the copying appears to have been done after Pulsecom had    determined howe the system functioned and merely to demonstrate the    interchangeability of the Pulsecom POTS cards with those made and    sold by DSC.*"

(Please see the critical wording between the asterisks.)

In other words, it appears that the court is saying "If the copying had been done as part of a reverse engineering effort, it would have been fine, under Sega. But it wasn't: the copying was done, in part, AFTER the reverse engineering had been completed. So, it's not privileged."

In any event, it's an interesting opinion from a number of perspectives, and well worth the read.

-Ari

Ari Kahan
<akahan[_at_]netcom.com>