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30 Days of DRM - Day 09: Reverse Engineering (Circumvention Rights)

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Sunday August 27, 2006
The inclusion of a reverse engineering circumvention right is another obvious necessary provision.  Reverse engineering is described by the Chilling Effects site as follows:

Reverse engineering is the scientific method of taking something apart in order to figure out how it works. Reverse engineering has been used by innovators to determine a product's structure in order to develop competing or interoperable products. Reverse engineering is also an invaluable teaching tool used by researchers, academics and students in many disciplines, who reverse engineer technology to discover, and learn from, its structure and design.

The need for a reverse engineering provision therefore follows from some of the discussion last week - it is pro-competitive as it facilitates the creation of compatible devices as well as greater competition in the marketplace. 
While there may be general agreement on the need for a reverse engineering provision, it is essential that Canada avoid the U.S. DMCA approach which has been widely criticized for being too limited in scope and thus woefully ineffective.
The DMCA allows software developers to circumvent TPMs of lawfully obtained computer programs, but in order to benefit from the provision, developers must seek permission first, must limit their activity strictly to interoperability, and cannot "traffic" in devices that would allow for circumvention (in other words, the tools need to circumvent may be unavailable).  Moreover, the provision is limited solely to computer programs, thereby excluding TPMs associated with network protocols or hardware devices.  The ineffectiveness of the reverse engineering provision has been borne out by caselaw - both the DeCSS case and the Blizzard case, which both involved interoperability issues, rejected attempts to use the DMCA's reverse engineering provision.

In addition to the need for a broadly worded circumvention right, Canadian copyright law would also benefit from an explicit right of reverse engineering.  The act of reverse engineering may well be covered by fair dealing given the expansive approach adopted by the Supreme Court of Canada in the CCH decision, however, there remains some element of risk in relying solely on the fair dealing user right.  To remove that innovation inhibiting risk, Canada should expand fair dealing so that the current categories are deemed illustrative rather than exhaustive or, alternatively, establish an explicit reverse engineering user right.

Not surprisingly, the reverse engineering issue has garnered attention from Canada's security industry.  The Digital Security Coalition, comprised of some of Canada's leading digital security companies, has written a public letter to the Ministers of Industry and Canadian Heritage emphasizing the importance of reverse engineering.  It warns against anti-circumvention legislation and calls for explicit protection for reverse engineering within the Copyright Act.
Comments (6)add comment

hiro protagonist said:

video game publishers are the worst culp
Please do not forget video games and the invasions on our rights and privacy as you go through these 30 days.

video game publishers are being more and more abusive of their monopoly and seem to be willing to go a LOT farther than even the restrictions that the MPAA and RIAA are trying to impose.

Things that would be front-page news and have the world in an uproar if applied to movies are already 'de facto' business standards in the world of video games.
August 27, 2006

Gamer said:

game piratism out of hand
Commenting hiro protagonist:

While some copy protections are very annoying and even harmful (rootkits etc.), the game piratism has gotten far too big to ignore. It is robbing developers money to make new titles. It also makes new games more expensive on the shelf, creating a vicious cycle.

Probably only solution to this is the network distribution method, similar to Valve's Steam.

That of course take stores out of the loop, robbing them the possibility of profit.

As for the Blizzard case, making free alternative to a paid service can hardly be considered reasonable reverse-engineering.

I support full-heartedly reverse engineering to produce a competing _product_ though.
August 28, 2006

Matt said:

Game Piracy?
There are a couple of facts about videogame piracy that people should have in mind.

1) Downloading pirated software for free is a "revenue" thing. I.e. mostly young people and students do it, once one gets a good paying job, it seems they start to legally buy their software. Point is, if pirated games were not available, most people wouldn't have the money to buy it anyway.

2) Downloading or copying is also made by a minority of people. I think in Canada the number is 30% (which amount grossely to the % of young video-gamers without a good paying job). These people though, MASSIVELY download or copy videogames. So in the end the data on the number of pirated software looks to be out of control.

The thing to keep in mind is: the argument that every pirated software in circulation is a lost sale is FALSE.

With that said, the piracy phenomenon becomes more or less a "price discrimination" thing, that is people that otherwise wouldn't be able to afford games now have access to it. May be they wouldn't even buy computer hardware in the first place if pirated games weren't available.

In the end the total number of gamers is higher, and network games over the internet reap most of the reward, like Valve has done since the first Half-Life game.

Since every game developper owns a monopoly over the game they created, you can view a "controled rate" of piracy has some added competition in the market, keeping the companies ability to price high in check.

And in the end.... good games are always profitable.
August 28, 2006

hiro protagonist said:

sort of...
Steam is one excellent example of how the future of game distribution will work - but even it's eula contains all kinds of very questionable entries, such as forcing the customer to keep a valid credit card on file with valve at all times, among other things.

The recent EA/Microsoft Xbox deal is probably the worst of the bunch - but there has been alot written about that online already.

>>good games are always profitable.

Not necessarily, but this has more to do with publisher attitudes / marketing and so on. It's easy for a great game to be not commercially successful, just like it is for music CD's or movies.
August 28, 2006

Brent said:

Good news for Hackers
If you can't reverse engineer, you can find security holes. If course illigitimate reverse engineering will continue by "the bad guys" while the "good guys" hands are tied. This is excellent news if you are a bad guy, and bad news for evetbody else.
August 29, 2006

MM said:

Reverse engineering
It\'s hard to build a better mousetrap if you can\'t take a current model apart and figure out how it works. Reverse engineering is the gold standard in product design in many industries. Everyone knows that the competition is going to buy your widget, take it apart, and tries to improve on it. It\'s called competition. If what you have done is truly unique, you do something to protect your IP (like putting a patent on it). The competetion still tries to reverse engineer (to get around your patent).

Now along comes the content industry. They know they can\'t build a proper lock, so they lobby the government to pass laws to prevent anyone from looking at the lock and see how crappy it really is. In fact, you won\'t let anyone else use your lock as part of your business model. These things are called anti-competitive behavior. In any other industry the Competition Bureau and other anti-competition bodies crawling all over you and making you stop.

What am I missing here?
September 02, 2006

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