More on Reverse Engineering and Copyright

by on June 22, 2006 · 8 comments

Related to my recent post about reverse engineering and innovation, a friend points me to another dispute over one company reverse-engineering another company’s product without permission:

In a statement, Green Hills confirmed that Express Logic has demanded arbitration of its ThreadX reseller agreement with Green Hills, and has accused Green Hills of illegally copying the ThreadX API…

The statement argues that “it is well established that copyright does not protect a software product’s method of operation, which includes its API. It is legal to copy the publicly available API of a product to implement a competing product with the same or similar API.”

Green Hills makes tools for the development of embedded software, such as the computer chip that monitors the fuel injection in your car. Green Hills had licensed some software from Express Logic, but then subsequently decided to build their own version of the software instead. The API is the application programmers interface–it defines the interface between Green Hills’s operating system and the programs its customers will build on top of it. (this is analogous to a developer creating a Windows application: he uses APIs published by Mirosoft to make sure his software will work correctly)

This case is complicated by the fact that Green Hills was previously a licensee of Express Logic’s products, so there might be some contract terms that are relevant. But at least on the copyright aspects of the case, Green Hills seems to be on firm ground. Courts have repeatedly held that a software copyright doesn’t include the right to control who may interoperate with that software. Assuming Green Hills can demonstrate they didn’t use any of Express Logic’s actual code in developing its product, they should lose the copyright case.

And it seems to me that that’s a good thing. Green Hills has customers who rely on the API when they’re building their own software. If Green Hills were forced to change its API, that would, in turn, force Green Hills’s customers to re-write all of their software. That would be extremely disruptive, and in practice, the more likely outcome would be that Green Hills would simply be forced to continue working with Express Logic indefinitely. If Express Logic wasn’t doing a very good job of keeping its software up to date, there’s little Green Hills could do about it.

As with the examples I gave in my previous post, reverse engineering acts a valuable safety valve for cases when a company’s proprietary technologies cease to serve customers’ needs. It’s quite common in the computer industry, and I think it expanding copyright law via the DMCA to restrict such reverse engineering was a mistake. And I think it would be an even bigger mistake to extend copyright law further to allow platform creators to lock out competitors.

  • Ned Ulbricht

    Tim,

    If the copyright claim is utterly and completely bogus, then aren’t Express Logic’s attorneys violating FRCP 11(b)(2)? That rule states:

    By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,–

    (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

    If the copyright claim is absolutely frivolous, then shouldn’t the courts and the legal profession act to rein in this abuse?

  • http://www.techliberation.com/ Tim Lee

    Ned,

    I don’t know anything about frivolous lawsuit statutes. I wouldn’t say Express Logic’s case is completely frivolous. Green Hills did have access to EL’s source code, so EL might be able to produce evidence that GH copied EL’s source code rather than just implementing its API. And their contract claims may have more merit.

    I just don’t think they’re likely to win with the argument that copying their API is copyright infringement.

  • Ned Ulbricht

    Tim,

    I’m really complaining about the IP plaintiff’s bar as a whole. It is not in the public interest to have attorneys bringing frivolous complaints for improper purposes. Yet the legal profession seems unwilling to self-regulate. This is a problem.

  • Ned Ulbricht

    Tim,

    If the copyright claim is utterly and completely bogus, then aren’t Express Logic’s attorneys violating FRCP 11(b)(2)? That rule states:

    By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,–

    (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

    If the copyright claim is absolutely frivolous, then shouldn’t the courts and the legal profession act to rein in this abuse?

  • http://www.techliberation.com/ Tim Lee

    Ned,

    I don’t know anything about frivolous lawsuit statutes. I wouldn’t say Express Logic’s case is completely frivolous. Green Hills did have access to EL’s source code, so EL might be able to produce evidence that GH copied EL’s source code rather than just implementing its API. And their contract claims may have more merit.

    I just don’t think they’re likely to win with the argument that copying their API is copyright infringement.

  • Ned Ulbricht

    Tim,

    I’m really complaining about the IP plaintiff’s bar as a whole. It is not in the public interest to have attorneys bringing frivolous complaints for improper purposes. Yet the legal profession seems unwilling to self-regulate. This is a problem.

  • Common Sense

    I think it’s a somewhat insane lawsuit at any rate. The plaintiffs seem like total control freaks and I bet they’re scaring their customers half to death.

  • Common Sense

    I think it’s a somewhat insane lawsuit at any rate. The plaintiffs seem like total control freaks and I bet they’re scaring their customers half to death.

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