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Reverse Engineering and the Rise of Electronic Vigilantism: Intellectual Property Implications of "Lock-Out" Programs

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Reverse Engineering and the Rise of Electronic Vigilantism: Intellectual Property Implications of Georgetown University Law Center Scholarship @ GEORGETOWN LAW 1995 Reverse Engineering and the Rise of Electronic Vigilantism: Intellectual Property Implications of "Lock-Out" Programs Julie E. Cohen Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/815 68 S. Cal. L. Rev. 1091-1202 (1995) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Intellectual Property Law Commons, and the Science and Technology Law Commons REVERSE ENGINEERING AND THE RISE OF ELECTRONIC VIGILANTISM : INTELLECTUAL PROPERTY IMPLICATIONS OF “LOCK-OUT” PROGRAMS * JULIE E. COHEN I. THE SEGA AND ATARI CASES.............................................1098 A. SEGA V. ACCOLADE ............................................................1098 B. ATARI V. NINTENDO .............................................................1101 II. THE DECOMPILATION DEBATE: FAIR USE OR FOUL PLAY?........................................................................1104 A. CHARACTERIZING COMPUTER PROGRAMS.........................1106 1. One of These Things Is Not Like the Others: Computer Programs as Literary Works...........................1107 2. Defining “Publication” in the Context of Machine- Readable Works...............................................................1111 B. COMMERCIAL ACTORS AND ENABLING USES: REFINING THE “COMMERCIAL PURPOSE” TEST .................1115 C. HOW MUCH DECOMPILATION IS TOO MUCH?....................1124 D. DISTINGUISHING BETWEEN MARKET USURPATION AND LAWFUL COMPETITION .............................................1125 E. TOWARD AN OVERARCHING VISION OF FAIR USE ..............1130 * J.D., Harvard Law School, 1991. Visiting Assistant Professor of Law, University of Pittsburgh School of Law. I would like to thank Anthony Clapes, Robert Clinton, Susan Freiwald, Sondra Hemeryck, Mark Lemley, Eileen Mullen, Pamela Samuelson, Eugene Volokh, and Lloyd Weinreb for their insightful comments and suggestions, Donald Cohen and Brian Wilson for discussion of technical and scientific issues, and Page Barnes for manual labor. I served as law clerk to Judge Reinhardt, who wrote the Ninth Circuit's opinion in Sega, and assisted him with the opinion's preparation. However, the views expressed here are my own. 1091 1092 III. ARE COPYRIGHT AND INTEROPERABILITY COMPATIBLE? ....................................................................1135 A. COMPUTER PROGRAMS AND THE “IDEA-EXPRESSION” DISTINCTION .....................................................................1136 B. PROCESS-EXPRESSION AND INTEROPERABILITY: A FUNCTIONALITY-BASED APPROACH .................................1143 IV. ENDGAME: PATENT PROTECTION FOR LOCK- OUT PROGRAMS ................................................................1152 A. A PROFUSION OF SLIPPERY SLOPES: THE FAILURE OF EFFORTS TO ISOLATE PATENTABLE SUBJECT MATTER ............................................................................1153 1. From Freeman-Walter-Abele to Alappat: The Corruption of the “Otherwise Statutory Process or Apparatus” Standard ..................................................1154 2. Rethinking the Mathematical Algorithm Bar...............1163 3. An “Information Processing” Exclusion.....................1166 4. Claim Construction and the Particularity Requirement .....................................................................1168 B. POINT OF NOVELTY RECONCEIVED: THE INNOVATIVE PROGRAMMER STANDARD ...........................1168 C. INSTITUTIONAL COMPETENCE ............................................1175 1. The Decisionmakers.....................................................1176 2. Prior Art.......................................................................1177 3. Shifting the Burden of Production ...............................1180 V. LOCK-OUT AS MISUSE: TWO PARADOXES ..................1181 A. THE PATENT MISUSE DEFENSE AND THE ENFORCEABILITY DILEMMA ...................................................1182 1. The Patent Misuse Reform Act of 1988........................1183 2. Lock-Out Patents and the Usefulness Requirement.....1186 3. Lock-Out as Patent Misuse ..........................................1190 B. THIN COPYRIGHTS AND THE CONTRACTION OF THE COPYRIGHT MISUSE DEFENSE ..........................................1194 VI. CONCLUSION: REFLECTIONS ON THE MODELS FOR INTELLECTUAL PROPERTY PROTECTION OF COMPUTER PROGRAMS...................................................1198 Nearly twenty years ago, Congress officially extended copyright protection to computer programs.1 Five years later, the Supreme Court 1 Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C. '' 101, 102 & 117 (1988 & Supp. 1994)). 1093 issued a decision that definitively established computer programs' eligibility for patent protection.2 The two developments had very different trajectories; the debate over patent protection was long, hard- fought, and occasionally acrimonious,3 while the extension of copyright protection was accomplished by committee and consensus, almost as an afterthought.4 The developments were similar in one respect, however. Both Congress and the Supreme Court treated computer programs as autonomous intellectual products, intended for use on a stand-alone basis in the same manner as a copyrighted book or a patented industrial apparatus.5 Today, in contrast, it is evident that the value of a computer program to its users depends heavily on its compatibility, or interoperability, with a particular computer system and with other programs.6 Whether interoperability-related issues should affect copyright and patent treatment of computer programs, and if so, how, are among the decade's most hotly debated legal questions.7 For creators of computer programs, achieving interoperability with particular computers and operating systems is necessary for com- mercial survival.8 Interoperability has also become a watchword for consumers who seek applications programs that will operate on their 2 Diamond v. Diehr, 450 U.S. 175 (1981). 3 For an exhaustive chronicle of this debate, see Pamela Samuelson, Benson Revisited: The Case Against Patent Protection for Algorithms and Other Computer-Related Inventions, 39 EMORY L.J. 1025, 1032-99 (1990) [hereinafter Samuelson, Benson Revisited]. 4 See H.R. REP. No. 94-1476, 94th Cong., 2d Sess. 51 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5664 (“[C]omputer programs, for exampleCcould be regarded as an extension of copyrightable subject matter Congress had already intended to protect, and were thus considered copyrightable from the outset without the need of new legislation.”); FINAL REPORT OF THE NAT'L COMM'N ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS 12, 15- 16 (1978) [hereinafter CONTU, FINAL REPORT]. 5 See 17 U.S.C. ' 101 (1988) (defining “computer program” as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result”); Diehr, 450 U.S. at 185-87 (describing program invention as a process in which “a mathematical formula” and “a digital computer” are used). 6 See Dennis S. Karjala, Copyright Protection of Computer Documents, Reverse Engineering, and Professor Miller, 19 U. DAYTON L. REV. 975, 990 (1994) [hereinafter Karjala, Computer Documents]; Dennis S. Karjala, Copyright, Computer Software, and the New Protectionism, 28 JURIMETRICS J. 33, 63-64 (1987) [hereinafter Karjala, New Protectionism]; Timothy S. Teter, Note, Merger and the Machines: An Analysis of the Pro- Compatibility Trend in Computer Software Copyright Cases, 45 STAN. L. REV. 1061, 1063-66 (1993). 7 The first court before which issues of compatibility were raised termed the defendant's desire to achieve compatibility “a commercial and competitive objective” irrelevant to the intellectual property analysis. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1253 (3d Cir. 1983). That conclusion is discussed and rejected infra part III.B. 8 See, e.g., Peter S. Menell, Tailoring Legal Protection for Computer Software, 39 STAN. L REV. 1329, 1357-58, 1361-63 (1987) [hereinafter Menell, Tailoring Legal Protection]. 1094 existing computer systems, or who may base selection of new systems on the applications programs available. Manufacturers of computer systems and operating systems have responded in a variety of different ways to program developers' demands for access to interoperability- related information. Some have made program interface specifications and protocols freely available to applications developers.9 Others have licensed the rights to create compatible programs to third parties, although some withhold complete technical information on in- teroperability requirements from their licensees.10 Still others, chiefly manufacturers of specialized computers designed to serve industry specific customer bases, have attempted to keep their systems com- pletely proprietary.11 As a result of the frequent unavailability of in- teroperability-related information through ordinary market channels, “reverse engineering” of interface specifications for proprietary and quasi-proprietary systems has become common. In particular, many third-party software developers have come to rely on a method of re- verse engineering known as “disassembly” or “decompilation,” which parses the binary object code in which computer programs are distrib- uted into higher-level,
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