UCITA and Open Source 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.

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 engineering.

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 policies."

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."

The letter is visible at http://www.acm.org/usacm/copyright/usacm-ucita.html.  Once again, read it in its entirety.

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 read here.

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 engineering.

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