Emory Law Journal Volume 60 Issue 5 2010 The Hacker's Aegis Derek E. Bambauer Oliver Day Follow this and additional works at: https://scholarlycommons.law.emory.edu/elj Recommended Citation Derek E. Bambauer & Oliver Day, The Hacker's Aegis, 60 Emory L. J. 1051 (2010). Available at: https://scholarlycommons.law.emory.edu/elj/vol60/iss5/1 This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory Law Journal by an authorized editor of Emory Law Scholarly Commons. For more information, please contact
[email protected]. BAMBAUER&DAY GALLEYSFINAL 6/6/2011 10:27 AM THE HACKER’S AEGIS Derek E. Bambauer* ∗∗ Oliver Day ABSTRACT Intellectual property (IP) law stifles critical research on software security vulnerabilities, placing computer users at risk. Researchers who discover flaws often face IP-based legal threats if they reveal findings to anyone other than the software vendor. This Article argues that the interplay between law and vulnerability data challenges existing scholarship on how intellectual property law should regulate information about improvements on protected works, and suggests weakening, not enhancing, IP protections where infringement is difficult to detect, lucrative, and creates significant negative externalities. It proposes a set of three reforms—“patches,” in software terms—to protect security research. Legal reform would create immunity from civil IP liability for researchers who follow “responsible disclosure” rules. Linguistic reform would seek to make the term hacker less threatening either by recapturing the term’s original meaning, or abandoning it.