On 6/17/05, Bruce Perens <[EMAIL PROTECTED]> wrote: > Clean-room is an excellent strategy for avoiding copyright infringement. > It enables someone to write a functionally compatible program without > having seen the original. In an infringement case, it makes it entirely > plausable to the court that the writer never saw the original > implementation and was working only from the functional description. > > I'm not clear why you didn't consider that.
Plausible isn't much help here. Courts mostly only ask "is it plausible that the resemblances are coincidental" when evaluating claims of copying of non-literal elements from a rejected screenplay, film scenario, creature sketch, etc. into a fictional work (such as a movie) made later. That sort of "constructive availability" test can weaken a claim of infringement at the factual copying stage, but usually only if it's demonstrably improbable that the later author even knew what was in the work alleged to have been copied. When there's no question that the new work was written with knowledge of the original's existence and general content, all that a "clean-room" technique can do is help substantiate the defense that certain non-literal similarities are a matter of engineering necessity in the course of a Computer Associates v. Altai type abstraction-filtration-comparison test. It is my impression that (under US law) literal similarities are handled the same whether or not they went through a "specification" stage, and are generally OK only when they are demonstrably inseparable from ideas, methods of operation, or compatibility requirements. I cite various examples below. Note however that anti-reverse-engineering clauses are enforceable (through a breach of contract claim), at least in negotiated contracts, at least in some circuits; compare Bowers v. Baystate at http://caselaw.lp.findlaw.com/data2/circs/Fed/011108v2.html . Note that in that case the appeals court upheld the district court judge's omission of damages for copyright infringement from the final reckoning, on the grounds that awarding damages for both breach of the anti-reverse-engineering clause and copyright infringement would constitute double recovery. Cheers, - Michael (IANAL, TINLA) As far as copyright is concerned, reverse engineering is reliably a protected fair use in the US, except in the rare case (like Atari v. Nintendo) in which an otherwise successful defense of fair use for reverse engineering purposes is weakened by skulduggery such as fraud on the copyright office. And even in that case, the court ruled that the actual quantity of literal copying exceeded engineering necessity. The criterion for copyright infringement in a final product is the amount of copied material and the extent to which affirmative defenses like copyright license and fair use apply to the product itself, not to the process by which it was written. Reverse engineering does frequently come up in cases where copyright infringement is among the claims; see, for instance, Sony v. Connectix (in which Connectix successfully justified its extensive use of the Sony BIOS in the course of creating its PlayStation Emulator, partly because Sony didn't claim to have found actual copying into the emulator's final form) and Alcatel v. DGI (the one at http://laws.findlaw.com/5th/9711339cv0v2.html ; there's a whole DSC/Alcatel saga), in which the entire gamut of causes of action came up except for claims of literal copying into DGI's product. But "improper means" of reverse engineering are generally a trade secret consideration, with little effect on the evidence for copyright infringement. See also Bateman v. Mnemonics (at http://www.law.emory.edu/11circuit/mar96/93-3234.ma2.html ; FindLaw's copy appears to be mangled). The Bateman court vacated and remanded the district court's judgment that copyright infringement had occurred, partly because the jury had not been properly instructed that compatibility requirements may justify literal copying. The Eleventh Circuit said that it would be "an incorrect statement of the law that interface specifications are not copyrightable as a matter of law" but did "join [the 9th, 2nd, and 5th] circuits in finding that external considerations such as compatibility may negate a finding of infringement." The Bateman court's ruling was not long after Lotus v. Borland was affirmed by an equally divided court, and other circuits weren't in a big hurry to follow the First as far as "not copyrightable as a matter of law". However, the Sixth Circuit went very nearly this far in the recent Lexmark case, writing (in the course of reversing the district court's ruling): "When a work itself constitutes merely an idea, process or method of operation, or when any discernible expression is inseparable from the idea itself, or when external factors dictate the form of expression, copyright protection does not extend to the work." It has been reported that the Supreme Court denied certioriari on Lexmark, making it a pretty strong precedent.
