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There has been a lot of debate regarding the issue of intellectual property protection accorded to software. Whether the same should be copyrighted or patented? Though recent trends of market rulers are inclined towards the patenting of computer software, for obvious reasons, the same is still a debatable issue.


Due to the uncertainty regarding the protection to computer software, the law on the infringement of the same still remains unsettled.


PURPOSE OF RESEARCH: - The crux of this study is to find out that whether the development of totally new software by the reverse engineering of copyrighted software amounts to Infringement?


In the 20years since the law became settled concerning the copyrightability of software various approaches & tests have been developed by the federal judiciary to determine when infringement of computer software has occurred. One of the most recent tests has been developed in the case of Computer Associates International, Inc. v. Altai, Inc.,[1] known as the ‘Altai test’, which proposes a new three part method “abstraction-filtration-comparison” test to determine whether elements of a computer program qualify for copyright protection and therefore subject a defendant to liability for copying. In short , using the ‘Altai test’ the Court will ultimately determine whether the alleged infringing program is “substantially similar” to the plaintiff’s original work.


But now suppose the final product of the defendant is not only an entirely new product, but also the intermediate process by which the defendant arrived at the final product is by the reverse engineering and decompilation of the plaintiff’s program code.


Reverse Engineering: - Reverse engineering software is the act of decompiling the executable code of a program in order to understand how it works. This can be done for two main reasons:

1)      to allow a programmer to write compatible software to interface with the program or

2)      To show a programmer how to copy a program's functionality.

Over the years, the use of reverse engineering of software has been extremely controversial. In fact, there have been two major lawsuits concerning products that were written with the help of decompilation.


The first major lawsuit was Atari vs. Nintendo. In this case, Atari Corporation reverse engineered Nintendo's game cartridges in order to create alternative games that could run on Nintendo's system. The judge in this case found that decompilation was acceptable to figure out unprotected elements of the software. However, Atari lost the case because they used fraud to obtain Nintendo's source code from the Copyright Office.

In the next major case the U.S. Court of Appeals for the 9th Circuit considered this issue in 1992 in Sega Enterprises Ltd. v. Accolade Inc.,[2] created a much stronger precedent because there were no fraud issues involved. In a similar manner to Atari, Accolade reverse engineered Sega's Genesis technology to discover how to make games for their system. Accolade then created a book with the relevant (and non-protectable) elements of Sega's technology, and passed the book on to their developers. These developers created a new game, Ishido, to compete with Sega's games.

In deciding the case, the court looked at many factors (including public policy concerns). In the end, the judge decided that reverse engineering software for the sole purpose of creating a compatible package is an acceptable use (under the "fair use" doctrine). In addition, the appeals court stated: "if disassembly of copyrighted object code is per se an unfair use, the owner of the copyright gains a de facto monopoly over the functional aspects of his work - aspects that were expressly denied copyright protection by congress". Thus, the court decided to adopt the policy encouraging competition (as opposed to IP protection) in the software industry.

In a recent case of Sony Computer Entertainment Inc. v. Connectix Corp.[3] the 9th Circuit holds the same core principal as in Sega, although the analysis of the four fair use factors is vastly different.



Therefore drawing conclusions from the case laws the following points are highlighted:-

1)      The fair use issues arises in the present context because of certain characteristics of computer software.

2)      The OBJECT CODE of a program may be copyrighted as expression, but it also contains ideas and performs functions that are not entitled to copyright protection.

3)      It was set forth in Sega that “where disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law.”

4)      Determine whether the final product contains infringing material or not, irrespective of the fact that there has been intermediate infringement.

5)      Whether the new work is “transformative” or not? In Sony , Connectix’s drafting of entirely new object code was considered transformative, despite the similarities in function and screen output.

6)      Effect of use upon the potential market.


Hence judging by the above case laws it can be concluded as of now that if the final product satisfies the criterion provided then there is no copyright infringement.




[1] 982 F2d 693, 702 (2d Cir.1992)

[2] 977 F.2d 1510 (9th Cir. 1992)

[3] 203.F.3d596 (9th Cir. 2000)

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