Why Banning Reverse Engineering Is Absurd


If there’s one thing that can throw anyone for a loop, it’s discovering that vital, life-saving technology is legally a black box and arboricultural consultant. That is, the tech can not be tinkered with for any reason, not even to evaluate how well it’s working and make changes to ensure protection against malfunction. Unfortunately, that’s exactly what’s happening. Pacemakers, devices that force a person’s heart to beat on a regular pattern, are considered black box technology. Tinkering with them is completely illegal because according to the Digital Millennium Copyright Act, there’s no difference between medical, life-saving technology and a Taylor Swift song.

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The DMCA enshrines in law something known as Technological Protection Measures, otherwise referred to as TPMs. These are essentially the different systems via which copyright holders are allowed to restrict access to a “work”. This may have originally been intended for use with songs and movies, but due to the wording of the law can apply to things like software. The law allows for restrictions such as various forms of encryption, password protections, or any number of other things. Thanks to the DMCA, it’s illegal to attempt to bypass any of these TPMs. Again, this is due to the fact that the entertainment industry was fearful that hackers might attempt to access their copyrighted material such as songs and movies. Unfortunately, the DMCA also makes reverse engineering illegal, since it can be viewed as a form of TPM circumvention.

Luckily, the DMCA does allow for certain exemptions. Every three years, affected parties are allowed to request they be excluded from the TPM rules should they feel that the laws are restricting access to legitimate activities. Currently, there are 44 proposals that were collected in 2014. This year, we get to see a number of rights holders and petitioners go head to head. They’ll be making their arguments, both for and against the exemptions in a number of hearings held before the Copyright Office. Eventually, likely after yet another round of hearings and even more reviews, the Office will release its decision on the various proposals.

The desired exemptions tend to fall into one of two broad categories: computer security and interoperability. The Copyright Office managed to narrow the 44 proposals down to 27 classes of materials.

All of the proposals seem fairly reasonable. But the question is, will the Copyright Office see it the same way, or are they going to disagree?

According to Pamela Samuelson, who currently works as the co-director of the Berkeley Center for Law and Technology, the Office is unlikely to see it the same way. According to her, if the past is any indication of the future, then the chances are quite high that the Copyright Office is going to deny a large majority of the requested exceptions, no matter how much sense they might make.

Samuelson feels that Congress should have adopted a much more narrow anti-circumvention rule in the first place.

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