On The Validity Of Anti-Reverse-Engineering Terms In Software License Agreement From The Perspective Of American Cases

In the realm of computer software, reverse-engineering, the reverse ofdevelopment, shall mean the process of developing a set of specifications for acomplex hardware system by an orderly examination of the specimens of that system.With the rapid development of the technologies, a great number of companies tend toban licensees’ reverse-engineering through shrimp-wrap agreements. The study on thevalidity of anti-reverse-engineering terms shows great importance to balance theinterests between copyright holders and the public, to urge the innovation in thesoftware industry and to motivate the social development.Chapter Ⅰ hereof argues that reverse-engineering is an fair use, becausereverse-engineering is one kind of study or research on the ideas and principles of thesoftwares, and meets the requirements of the "Three-Step Test", by studying the casesin the U.S. and the P.R.C governing law.Chapter Ⅱ argues technology measure makes reverse-engineering more difficultto conduct. Under DMCA in the U.S., reverse-engineering exists as an exception ofthe circumvention of technology measure, meanwhile under governing laws in Chinathere is no exception for reverse-engineering, which means anyone cannot circumventthe technology measure without the authorization of the copyright holder. Chapter Ⅲ analyzes several important cases on anti-reverse-engineering contractterms under American laws, and researches the theories of "preemption" and"statutory right waive". We may draw ideas from the legal practice of the U.S. courts,but their adoption of these theories lack of consideration of legal purpose of copyrightlaw.Chapter Ⅳ argues that reverse-engineering is a right concerning public interestand discusses the elements to judge whether the anti-reverse-engineering term shall beallowed: whether reverse-engineering is a right conferred by copyright law, andwhether reverse-engineering is for individual right or public right. Under the laws inChina, for public interest concern, the regulations governing reverse-engineering is amandatory rule that cannot be contracted. As a result, the part ofanti-reverse-engineering terms conflicting with the mandatory rules shall be void andnull, and the rest shall have its legal effect.