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The following archive was created by hippie-mail 7.98617-22 on Fri Aug 21 1998 - 17:19:01 ADT
Peter D. Junger (junger@samsara.LAW.CWRU.Edu)
Wed, 24 Jun 1998 19:36:29 -0300
Bruce Schneier writes:
: At 01:20 PM 6/23/98 -0500, Andrew Loewenstern wrote:
: >Mike Stay writes:
: >> Oops! Crypto challenges are provided for under the bill.
: >> But any third-party analysis of software without the vendor's
: >> consent is illegal.
: >
: >Will this provision stand up in court? There are many court cases that
: >support peoples right to reverse-engineer software: the Phoenix BIOS case,
: and
: >cases where vendors reverse-engineered Microsoft's proprietary API.
:
: Yes. But in those cases there was not an explicit law preventing it. There
: is
: no constitutional issue here; the court's job will be to uphold the law.
Do not be too sure of that. One can fairly easily construct a freespeech,
first amendment challenge to a law forbidding reverse engineering, both
because it infringes on people's right to ``hear''---to obtain information---
and to impart information.
Note that this proposed law would supplement copyright law and that
copyright law itself restricts one's freedom to speech and publish;
according to Nimmer on Copyright the tension between the First Amendment
and Copyright law is resolved by the courts using a balancing test.
It would seem unlikely that an anti-reverse engineering law would, in the
end, survive that test. (But I would expect the lower courts at first
to uphold the law, if only because, not having many ideas, they may think
that other people have no right to---and no interest in---not having their
own ideas expropriated by some firm under the guise that the idea is that
firm's ``intellectual property''.)
--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu
NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists
The following archive was created by hippie-mail 7.98617-22 on Fri Aug 21 1998 - 17:19:01 ADT