Decompilation 1 Software Copyright Oren Bracha, Summer 2015

Decompilation and Interoperability

17 U.S.C. §107 Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include - (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors

What is “fair use?”

Fair Use: Typical Considerations 1) the purpose and character of the use Commercial Transformative – Content/function Broad social benefits 2) the nature of the copyrighted work Published/unpublished Creative v. functional/creative 3 ) the amount and substantiality of the portion used Quantity and quality Subject to “need” in favored use cases. 4) the effect of the use upon the potential market for the work Primary markets Secondary markets if “traditional reasonable or likely to be developed.” Does not include markets for highly transformative uses

Sega Enterprises Ltd. v. Accolade (9 th Cir. 1992) decompiler Original Sega game cartridge Sega Genesis Console decompilation source code development manual Accolade game

Sega Enterprises Ltd. v. Accolade (9 th Cir. 1992) decompilation is fair use if it provides the only means of access to unprotected elements of the code that the copier has a legitimate reason for accessing. Fair Use – Purpose and character of the work – Nature of copyrighted work – Amount and substantiality – Effect on the Market

Sega Enterprises Ltd. v. Accolade (9 th Cir. 1992) Fair Use – Purpose and character of the work Presumption against commercial use rebutted Intermediate use only and therefore commercial exploitation minimal Public benefits of compatibility and competition – Nature of copyrighted work Creative protectable elements only accessed because necessary for accessing non-protectable elements (otherwise de facto control of non- protectable elements) – Amount and substantiality Entire work – Effect on the Market Effect of enabling competition by independent “works of the same type as the copied work” ignored.

E.U.: Observation, Study & Testing Entitlement to: observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program. If: A person having a right to use a copy of a computer program While performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do. Contrary contractual stipulation invalid (Art. 8)

Directive 2009/24/EC Recital 14 A person having a right to use a computer program should not be prevented from performing acts necessary to observe, study or test the functioning of the program, provided that those acts do not infringe the copyright in the program. Art. 5(3) The person having a right to use a copy of a computer program shall be entitled, without the authorisation of the rightholder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.

E.U.: Decompilation Right to reproduce and translate code when: indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, Additional conditions: – Acts by the licensee or by another person having a right to use a copy of a program, or on their behalf – the information necessary to achieve interoperability has not previously been readily available. – the acts are confined to the parts of the original program which are necessary in order to achieve interoperability.

E.U.: Decompilation Restrictions on use of information: for goals other than to achieve interoperability. Transferring to others – except when necessary for the interoperability of the independently created computer program used for the development production or marketing of a computer program substantially similar in its expression.

Directive 2009/24/EC Recital 15 The unauthorised reproduction, translation, adaptation or transformation of the form of the code in which a copy of a computer program has been made available constitutes an infringement of the exclusive rights of the author. Nevertheless, circumstances may exist when such a reproduction of the code and translation of its form are indispensable to obtain the necessary information to achieve the interoperability of an independently created program with other programs. It has therefore to be considered that, in these limited circumstances only, performance of the acts of reproduction and translation by or on behalf of a person having a right to use a copy of the program is legitimate and compatible with fair practice and must therefore be deemed not to require the authorisation of the rightholder. An objective of this exception is to make it possible to connect all components of a computer system, including those of different manufacturers, so that they can work together. Such an exception to the author's exclusive rights may not be used in a way which prejudices the legitimate interests of the rightholder or which conflicts with a normal exploitation of the program.

Directive 2009/24/EC Art. 6(1) 1.The authorisation of the rightholder shall not be required where reproduction of the code and translation of its form within the meaning of points (a) and (b) of Article 4(1) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met: (a)those acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorised to do so; (b)the information necessary to achieve interoperability has not previously been readily available to the persons referred to in point (a); and (c)those acts are confined to the parts of the original program which are necessary in order to achieve interoperability.

Directive 2009/24/EC Art. 6(2) 2. The provisions of paragraph 1 shall not permit the information obtained through its application: (a)to be used for goals other than to achieve the interoperability of the independently created computer program; (b)to be given to others, except when necessary for the interoperability of the independently created computer program; or (c)to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright.

Directive 2009/24/EC Art. 6(3) 3. In accordance with the provisions of the Berne Convention for the protection of Literary and Artistic Works, the provisions of this Article may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices the rightholder's legitimate interests or conflicts with a normal exploitation of the computer program.