Hacking the Xbox

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Hacking the Xbox: An Introduction to Reverse Engineering
The above passage indicates that intellectual property law has long been
concerned about limiting the potential monopoly power conferred by
copyright and patent law. For instance, the first-sale doctrine prevents patent
and copyright owners from controlling the market once patented products
or copies of copyrighted works are sold.
Also, copyright law has long been interpreted by courts and crafted by
Congress to preserve a balance with freedom of speech. Doctrines like the
idea/expression dichotomy, the fair use doctrine, and copyright’s limited
term are generally viewed as reducing the potential conflict between copyright
and freedom of expression. 18
Interestingly, concern about monopolies is historically linked to the concern
for free speech. English copyright law had long functioned as a kind of
state-sponsored cartel; in return for private monopolies over writings, the
publishers agreed to act as policemen of the press in the service of government
censorship — in particular, the Bible and other religious works. 19
Similarly, copyright law’s idea-expression dichotomy ensures that
uncopyrightable facts and ideas and unpatentable functional principles
remain in the public domain for future creators to build on.
The Traditional View of Reverse
Engineering
Historically, reverse engineering has always been a lawful way to gain
information embodied in mass-marketed products. For many technology
firms, reverse-engineering competitors’ products to study their innovations
is a standard practice. Indeed, U.S. courts have also treated reverse engineering
as an important factor in maintaining balance in intellectual property law,
and the Supreme Court has called reverse engineering “an essential part of
innovation.”
The law recognizes three main purposes of legitimate reverse engineering.
Competitive reverse-engineering is intended to create a direct substitute.
Compatibility or interoperability reverse-engineering is aimed at figuring out
how to make a product that works with the reverse-engineered product.
And of course, researchers often reverse-engineer products in order to gain
knowledge with no commercial purpose.
Trade Secrecy and “Improper Means”
In general, a trade secret is misappropriated only if a person or firm
misuses or discloses the secret in breach of an agreement or confidential
relationship, engages in other wrongful conduct (e.g., bribery, coercion,
18 See generally Neil Weinstock Netanel, Locating Copyright
Within the First Amendment Skein, 54 Stan. L. Rev. 1 (2001).
19 See generally L. Ray Patterson, Free Speech, Copyright, and
Fair Use, 40 Vand. L. Rev. 1 (1987).