More on Reverse Engineering and Copyright

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.

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