UCITA and Open Source Software
Additional Disclaimer: I'm not a lawyer and this is not legal advice
Upon first discovery of UCITA I jumped for joy. This will push Open Source
over the top for sure. Nobody in their right mind will opt for proprietary
software when they need to put up with legally enforcible hidden contracts,
threat of mission critical software remote shutdown (repo man spends his
life getting into risky situations), and legally sanctioned abandonment
of as-advertised, as-demonstrated performance. The end of proprietary software,
I should have known they had something up their sleeve. That something
is UCITA's de-facto ban on reverse engineering. It's not particularly hard
to build a "generic brand" Microsoft feature, as proven by Samba, Corel
Wordperfect and Star Office. But now those generic brands are illegal,
because by definition they're done with reverse engineering.
NOTE ON UCITA NOT MENTIONING REVERSE ENGINEERING
UCITA does not *explicitly* ban reverse engineering. In fact, the text
of the law does not mention reverse engineering: A fact that pro-UCITA
forces are fond of mentioning. Pro-UCITA forces often make the argument
that this means UCITA doesn't ban reverse engineering. I consider this
argument disingenuous, and an insult to our intelligence. In fact:
Most modern software licenses ban reverse engineering.
But without UCITA, those licenses do not automatically
have "the rule of law".
With UCITA, those licenses and their anti-reverse engineering
provisions, now have rule of law.
Proprietary software vendors have every incentive, and
no disincentive, to include anti-reverse engineering provisions.
Therefore, for practical purposes, UCITA bans reverse
You may even encounter a pro-UCITA voice claiming that in UCITA's
Official Comments it's suggested that an anti-reverse engineering license
provision might be challenged as a violation of fundamental public policy,
or that the Official Comments mention that 17 U.S.C. § 1201 (1999)
recognizes a policy to not prohibit some reverse engineering where it is
needed to obtain interoperability of computer programs. But a different
section of the comments contains the following:
"On the other hand, trade secret law does not prohibit
reverse engineering of lawfully acquired goods available on the open market.
Striking the appropriate balance depends on a variety of contextual factors
that can only be assessed on a case-by-case basis with an eye to national
A case by case basis. In other words, in the pre-UCITA world you could
pretty much reverse engineer for interoperability, and there was no problem.
This is born out by the wealth of Open Source software that interoperates,
with proprietary software, in a manner requiring reverse engineering. But
in the post-UCITA world, it's evaluated "case by case" in court. So you
can still reverse engineer if you have tens or hundreds of thousands of
dollars committed to legal fees. If you're an Open Source project asking
people to donate old computers and pizza, you're out of luck.
Don't take my word for it -- I'm no lawyer. How about these words from
Barbara Simons and Eugene H. Spafford of the ACM:
"UCITA allows publishers to ban reverse engineering by means of contractual
use restrictions." You can find this quote at "http://www.acm.org/usacm/copyright/ucita.states.htm".
I recommend reading it in its entirety.
You may hear a pro-UCITA voice claiming reverse engineering to already
be illegal, possibly even stating come case law applications. I'm no lawyer,
but here's an exerp from the 7/12/1999 letter from the President of the
Association for Computing Machinery (Barbara Simons). You can find this
quote at http://www.acm.org/usacm/IP/usacm-ucita.html:
"Software developers can freely reverse engineer
mass-market products under current law."
Finally, read UCITA itself -- all 100+ pages of it. Ask yourself whether
you would ever sign a contract written like this. Ask yourself whether
you want to be governed by something like this. Don't just throw up your
hands and say you don't understand it. Could it be that THE INTENT is for
the layman not to understand it? The layman who undertands wants no part
of this 27,857 word albatross (wordcount by MS Word). Read it here: http://www.law.upenn.edu/bll/ulc/ucita/ucita200.htm.
There's also a PDF
version at http://www.law.upenn.edu/bll/ulc/ucita/ucita200.pdf
that's at least formatted better, though certainly not clearer.
So the next time a UCITA sycophant implies that UCITA has nothing to do
with reverse engineering and Open Source software, remember what you've
Reverse engineering is NOT the theft of trade secrets. Reverse engineered
code is done in a "clean room" environment, where none of the developers
have anything to do with source code for the product being reverse engineered.
It's just probing the program over a network or whatever to determine what
it's doing, and then writing code to accomplish the same thing a different
way. But now that's illegal (for practical purposes).
As soon as UCITA becomes law, do you think Microsoft is going to change
the .doc format? Do you think they'll change their file and printer sharing
to become incompatible with Samba? Consider the temptation. Because now
it will be ILLEGAL for Samba to interoperate with Windows -- it requires
a little reverse engineering. And now it will be ILLEGAL for Wordperfect
and Star Office to import Word documents -- it requires a little reverse
Not quite illegal. Samba is based in Australia, so they needn't obey
US laws. Corel is Canadian. Do they have any kind of "presence" in the
U.S? How does that effect their relationship with UCITA? I don't know,
read the text of UCITA. My PDF copy is 114 pages :-).
But for most software -- they're out of business -- they can't legally
interoperate with Microsoft products (unless they partake in an agreement
with Microsoft, and we all know how those agreements turn out). US developers
won't be able to help with Samba -- it involves reverse engineering. The
net result of the reverse engineering ban will be a brain drain out of
the United States. The US will lose its preeminent position in technology.
Possibly good news for other countries, but not for the one that passed
UCITA. If you're an American, the next time you read an ad for a Microsoft
or other proprietary product, remember what they're doing to your country.
And yes, Microsoft is on record as supporting UCITA.
It sounds hopeless, but there's a way out of this mess. Salvation is
available to those businesses that immediately say
no to proprietary software.
Next: Preparing for UCITA
Copyright (C) 1999-2000 by Steve Litt