Tuesday, 30 April 2002
111 Yale L.J. 1499 (2002)
Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms--none of this appealed to us anymore. "I hate war and so does Eleanor," opined FDR in the oft-repeated lyrics of Pete Seeger. War became a subject for ironic disdain. As Tom Lehrer caught the mood of the 1960s: "We only want the world to know that we support the status quo. . . . So when in doubt, Send the Marines!"
Behind this disdain for war lies as well a distaste for the Romantic view of the world that tends to glorify the nation and war as an expression of patriotism. As Nancy Rosenblum argues, in the Romantic view of the world, war and militarism become sources of inspiration. Identifying with an ideology worth dying for, accepting a place in the hierarchy of command, becoming part of the fighting collective--these are actions and commitments that lift men out of the quotidian and enable them to feel that their lives express a deeper meaning.
Revolutions and wars of self-determination have always appealed to Romantics. In the beginning of the nineteenth century, the Greek war of independence captured Byron's imagination. The War of 1848 brought Francis Lieber face to face with the glory of battle. The Spanish Civil War had a similar appeal in the twentieth century. As Barbara Ehrenreich describes the popular reaction to World War I, the outbreak of hostilities in 1914 unleashed "a veritable frenzy of enthusiasm, . . . not an enthusiasm for killing or loot, . . . but for something far more uplifting and worthy." The aversion to war that set in after Hiroshima and Vietnam represented a rejection of this Romantic sensibility. Finding meaning in warfare was relegated to the outdated attitudes of another time.
In popular culture, at least, things have begun changing, and the shift became evident even before September 11. If the postwar and Vietnam eras found expression in films like Dr. Strangelove and Apocalypse Now, the new spirit of patriotism became visible in Steven Spielberg's film Saving Private Ryan and in Tom Brokaw's bestseller The Greatest Generation. Slightly more than fifty years after the event, the invasion of Normandy became a focal point of nostalgia and renewed interest in the lives of heroes bound together in the brotherhood of battle. Consider that Joseph Ellis, best-selling historian and professor at Mount Holyoke College, made up heroic military adventures to please his students. It would have been unthinkable for a professor circa 1970 or 1980 to think that he could impress a university audience by pretending to have fought against the Viet Cong. The recent call to arms against terrorism came when many Americans were yearning to believe, once again, that our highest calling lay in going to war for freedom and the American way.
Whatever may happen in the culture at large, the law has never been a particularly hospitable place for poets and Romantics yearning for peak moments of experience. Perhaps some lawyers who litigate grand political issues experience something like Romantics going to war. But by and large, we in the academic world are committed to the orderly life and, at least on the surface of things, to a set of ideas that I describe as the opposite of the Romantic ethic. We advocate the principles of voluntary choice, methodological individualism, and individual responsibility. All challenges to the hegemonic way of thinking are simply accommodated as variations on individual needs and preferences. For want of a better term, I refer to this collection of ideas as liberalism. Not many would dissent from the claim that the dominant culture of the law school world is this ever-yielding, all-encompassing form of liberalism--the "L" word used, of course, in the philosophical rather than the political sense.
There are variations of liberal jurisprudence but there is no school of Romantic jurisprudence. Admittedly the "R" word crops up here and there--in works by James Whitman on early nineteenth-century German attitudes toward Roman law, Steve Shiffrin on the First Amendment, and Vivian Curran on the disputed distinction between common law and civil law. A Lexis search reveals about 500 documents in the year 2001 containing the word "liberalism." In the entire database of law reviews, there are about the same number of references to "Romanticism," and often the use of the word is incidental or dismissive, as in the expression "naïve Romanticism."
A single methodology dominates the legal discourse of our time. Whether the talk is of law and economics, of constitutional law, of corrective justice, or of human rights, the methodology remains the same. What counts is individuals, their rights, their preferences, their welfare.
Perhaps we are missing something by ignoring the impulses that led Romantics to worship an expansive self that could identify with the entire nation as an actor in history. The Romantics in Germany, in France, and in England--though there were ample differences among them--created an alternative to methodological individualism. They developed a way of thinking about the self and about the nation that challenges us to reconsider liberal assumptions about both the virtues and the vices of collective entities of which we are a part. Of all the attributes of collective entities, the phenomenon of collective wrongdoing offers the greatest challenge. I want to take seriously the possibility that entire bodies of people, in particular the nations of which we are a part, can be guilty for the crimes actually carried out by a few. It is obvious that this possibility of collective guilt flouts liberal premises, which hold that only individuals can have the mens rea and tender the malice necessary to be held guilty for wrongdoing.
Though I probably have more sympathy for collective guilt than can be found in the current academic culture, I conceive of this Article as devoted not to a thesis but to a problem. The problem is whether it is acceptable to ascribe guilt to collective actors and particularly to nations like the United States, France, and Germany. The problem, I argue, is an outgrowth of larger conflict between the mentality of liberals and the sentiments of Romantics. For liberals and Romantics at war, this is one of the primary intellectual fields of battle. As the fight over collective guilt is won or lost, so are larger stakes decided: Is the individual the ultimate unit of action and responsibility, or are we, as individuals, invariably implicated by the actions of the groups of which we are a part?
Tuesday, 30 April 2002
111 Yale L.J. 1575 (2002)
Reverse engineering has a long history as an accepted practice. What it means, broadly speaking, is the process of extracting know-how or knowledge from a human-made artifact. Lawyers and economists have endorsed reverse engineering as an appropriate way to obtain such information, even if the intention is to make a product that will draw customers away from the maker of the reverse-engineered product. Given this acceptance, it may be surprising that reverse engineering has been under siege in the past few decades.
While some encroachments on the right to reverse-engineer have been explicit in legal rulemaking, others seem implicit in new legal rules that are altogether silent on reverse engineering, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Economic Espionage Act of 1996 (EEA). TRIPS is an international treaty that, among other things, obligates member states of the World Trade Organization to protect trade secrets, yet it neither requires nor sanctions a reverse engineering privilege. The EEA created the first federal cause of action for trade secrecy misappropriation. Its lack of a reverse engineering defense has troubled some commentators because rights granted under the EEA arguably implicate certain reverse engineering activities previously thought to be lawful.
Among the explicit legal challenges to reverse engineering are these: In the 1970s and 1980s some states forbade the use of a direct molding process to reverse-engineer boat hulls. In the late 1970s and early 1980s, the semiconductor industry sought and obtained legislation to protect chip layouts from reverse engineering to make clone chips. In the mid-1980s and early 1990s, a controversy broke out about whether decompilation, a common form of reverse engineering of computer programs, was legal as a matter of copyright law. Even after U.S. courts ruled that decompilation was acceptable for purposes such as achieving interoperability, a related controversy broke out over the enforceability of licenses forbidding reverse engineering of software and other digital information. More recently, questions have arisen about whether the decompilation of computer programs infringes upon patent rights in software components. In 1998, Congress outlawed the reverse engineering of technical protections for digital versions of copyrighted works and prohibited both the creation and distribution of tools for such reverse engineering (except in very limited circumstances) as well as the disclosure of information obtained in the course of lawful reverse engineering.
Our objectives in this Article are, first, to review legal developments regarding the right to reverse-engineer, and second, to understand their economic consequences.
We start in Part II with a discussion of the well-established legal right to reverse-engineer manufactured goods. In our view, the legal rule favoring reverse engineering in the traditional manufacturing economy has been economically sound because reverse engineering is generally costly, time-consuming, or both. Either costliness or delay can protect the first comer enough to recoup his initial research and development (R&D) expenditures. If reverse engineering (and importantly, the consequent reimplementation) of manufactured goods becomes too cheap or easy, as with plug-molding of boat hulls, it may be economically sound to restrict this activity to some degree.
In Parts III, IV, and V, we consider the law and economics of reverse engineering in three information-based industries: the semiconductor chip industry, the computer software industry, and the emerging market in technically protected entertainment products, such as DVD movies. In all three contexts, rules restricting reverse engineering have been adopted or proposed. We think it is no coincidence that proposals to restrict reverse engineering have been so common in information-based industries. Products of the information economy differ from traditional manufactured products in the cost and time imposed on a reverse engineer. With manufactured goods, much of the know-how required to make the goods remains within the factory when the products go to market, so that reverse engineering can capture only some of the know-how required to make the product. The information-rich products of the digital economy, in contrast, bear a higher quantum of applied know-how within the product distributed in the market.
For so-called digital content (movies, sound recordings, and the like), the relevant knowledge is entirely on the surface of the product, at least in the absence of technical protections such as encryption. Technical protections create costs for reverse engineers. When computer programs are distributed in object code form, a difficult analytical process is required to ascertain information embedded in the program, but it is there for the taking if a reverse engineer is willing to spend the time to study it. For computer chips, the relevant knowledge is circuit design, which is not only embodied within the chip, but also readily accessible using technologies discussed below. The challenge is to design legal rules that protect information-rich products against market-destructive cloning while providing enough breathing room for reverse engineering to enable new entrants to compete and innovate in a competitively healthy way.
Part III focuses on the semiconductor chip industry. When the competitive reverse engineering and copying of semiconductor chip designs became too easy and too rapid to enable innovators to recoup their R&D costs, Congress responded by enacting the Semiconductor Chip Protection Act of 1984 (SCPA) to protect chip makers from market-destructive cloning while affirming a limited right to reverse-engineer chips. The SCPA allows reverse engineers to copy circuit design to study it as well as to reuse information learned thereby in a new chip, but it imposes a forward engineering requirement that inevitably increases a second comer's development time and increases its costs. In the context of the chip industry, we think this restriction on reverse engineering is economically sound.
Part IV focuses on the software industry. Reverse engineering is undertaken in the software industry for reasons different from those in other industrial contexts. The most economically significant reason to reverse-engineer software, as reflected in the case law, is to learn information necessary to make a compatible program. The legal controversy over whether copies made of a program during the decompilation process infringe copyrights has been resolved in favor of reverse engineers. But as Part IV explains, the economics of interoperability are more complex than legal commentators have acknowledged. On balance, however, we think that a legal rule in favor of reverse-engineering computer programs for purposes of interoperability is economically sound.
Part V discusses the emerging market for technically protected digital content. Because technical protection measures may be defeated by countermeasures, copyright industry groups persuaded Congress to enact the Digital Millennium Copyright Act (DMCA), which creates new legal rules reinforcing technical measures used by copyright owners to protect their works. It protects them against most acts of circumvention, against the manufacture and distribution of circumvention technologies, and against dissemination of information resulting from privileged acts of circumvention. In our view, these new rules overly restrict reverse engineering, although the core idea of regulating trafficking in circumvention technologies may be justifiable.
Part VI steps back from particular industrial contexts and considers reverse engineering as one of the important policy levers of intellectual property law, along with rules governing the term and scope of protection. The most obvious settings for the reverse engineering policy lever are "on" (reverse engineering is permissible) and "off" (reverse engineering is impermissible). However, our study reveals five additional strategies for regulating reverse engineering in the four industrial contexts studied: regulating a particular means of reverse engineering, adopting a "breadth" requirement for subsequent products, permitting reverse engineering for some purposes but not others, regulating tools used for reverse engineering, and restricting the dissemination of information discerned from reverse engineering. In this discussion, we distinguish between regulations affecting the act of reverse engineering and those affecting what the reverse engineer can do with the resulting information. Some restrictions on reverse engineering and on post-reverse-engineering activities may be economically sound, although we caution against overuse of restrictions on reverse engineering because such restrictions implicate competition and innovation in important ways. Part VI also considers policy responses when innovators seek to thwart reverse engineering rights by contract or by technical obfuscation.
Intellectual property law in the United States has an important economic purpose of creating incentives to innovate as a means of advancing consumer welfare. The design of intellectual property rules, including those affecting reverse engineering, should be tailored to achieve these utilitarian goals and should extend no further than necessary to protect incentives to innovate. Intellectual property rights, if made too strong, may impede innovation and conflict with other economic and policy objectives.