Hacking the Xbox

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Hacking the Xbox: An Introduction to Reverse Engineering
U.S. courts have found that copyright law does not necessarily prohibit
reverse-engineering, because copying incidental to reverse engineering can be
a “fair use”: “The Copyright Act permits an individual in rightful possession
of a copy of a work to undertake necessary efforts to understand the
work’s ideas, processes, and methods of operation.” 23 This can be true even
when the ultimate goal of the reverse engineering is commercial. The courts
generally rely on the Constitutional purpose for copyright protection: “the
promotion of ‘the Progress of Science….’” 24 The fair use doctrine advances
this Constitutional objective by “encourag[ing] others to build freely upon
the ideas and information conveyed by a work.” 25
The key case here was Sega Enterprises Ltd. v. Accolade, Inc. 26 Accolade
disassembled Sega game programs in order to get information necessary to
make its games compatible with the Sega Genesis game console. Accolade
then sold its own games in competition with games made by Sega and its
licensed developers. Accolade raised a fair use defense to Sega’s claims that
the disassembly copies were infringing. The court accepted Accolade’s
defense for the reasons described above. It also noted that if Accolade
could not dissassemble Sega’s code, Sega would get “a de facto monopoly
over [the unprotected] ideas and functional concepts [in the program],”
which is only available under patent law. 27
The court’s holding, however, was limited to reverse engineering undertaken
for a “legitimate reason,” such as to gain access to the functional specifications
necessary to make a compatible program, and then only if it “provides
the only means of access to those elements of the code that are not
protected by copyright.” 28
Patent Law
There is no general fair use defense or reverse-engineering exemption in
patent law. In theory, you shouldn’t need to reverse-engineer a patented
product, because the patent specification should inform the relevant
technical community of the best way to make the invention.
Some reverse engineering activities will not infringe a patent. The buyer of a
machine embodying a patented invention, for example, is generally free to
disassemble it to study how it works under patent law’s first-sale principle.
Buying the product means that you have the right to use it, and simply
studying it doesn’t infringe the patent owner’s exclusive rights to make or
sell the invention. Nevertheless, courts sometimes enforce contractual
restrictions on reverse engineering. 29
23 Atari Games Corp. v. Nintendo, 975 F.2d 832, 842 (Fed. Cir.
1992); see Sony Computer Ent. Corp. v. Connectix Corp., 203
F.3d 596 (9th Cir. 2000).
24 Id., quoting U.S. Const. Art. I, §8, cl. 8.
25Feist Publications, Inc., v. Rural Telephone Serv. Co., Inc., 499
U.S. 340, 350 (1991).
26 977 F.2d 1510 (9th Cir. 1992).
27 Id. at 1526-1527.
28 Id. at 1518.