program that are necessary to achieve interoperability of an independently created computer
program with other programs” comes directly from Article 6 of the European Union Software
Directive, and appears to be the first time that language from an EU Directive has been
incorporated verbatim into the United States Code.^974
Development and Employment of a Technological Means for Enabling Interoperability.
Section 1201(f)(2) provides that, notwithstanding the prohibitions in Sections 1201(a)(2) and
1201(b), “a person may develop and employ technological means to circumvent a technological
measure, or to circumvent protection afforded by a technological measure, in order to enable the
identification and analysis under paragraph (1), or for the purpose of enabling interoperability of
an independently created computer program with other programs, if such means are necessary to
achieve such interoperability, to the extent that doing so does not constitute infringement under
this title.”
The scope of this exemption is uncertain from its language in several respects. First, it is
unclear what kinds of “technological means” Congress had in mind for falling within this
exemption. The reference to allowing a person to “develop and employ” such technological
means may suggest that the exemption is limited to only those means developed by the person
desiring to circumvent, as opposed to commercially available circumvention means. The
legislative history suggests otherwise, however, for it contemplates that the rights under Section
1201(f)(2) may be exercised through either generally available tools or specially developed tools:
[Section 1201(f)(2)] recognizes that to accomplish the acts permitted under
[Section 1201(f)(1)] a person may, in some instances, have to make and use
certain tools. In most instances these will be generally available tools that
programmers use in developing computer programs, such as compilers, trace
analyzers and disassemblers, which are not prohibited by this section. In certain
instances, it is possible that a person may have to develop special tools to achieve
the permitted purpose of interoperability. Thus this provision creates an
exception to the prohibition on making circumvention tools contained in
subsections 1201(a)(2) and (b). These tools can be either software or hardware.^975From this legislative history, it is apparent that the phrase “develop and employ” in Section
1201(f)(2) was probably intended to mean “develop and/or employ.”
A second ambiguity is whether the “technological means” of Section 1201(f)(2) were
intended to be limited to the kinds of reverse engineering “tools” cited in the legislative history
(compilers, trace analyzers, disassemblers and the like), or whether they could be read more
broadly to encompass computer programs, such as application programs, that in their ordinary
operation are designed to circumvent technological measures protecting another computer
program so as to interoperate with it. For example, consider the fact pattern at issue in the case
(^974) Jonathan Band & Taro Issihiki, “The New Anti-Circumvention Provisions in the Copyright Act: A Flawed
First Step,” Cyberspace Lawyer, Feb. 1999, at 2, 4. Section 1201(f) may also represent the first Congressional
recognition of the legitimacy of software reverse engineering. Id.
(^975) S. Rep. No. 105-190, at 33 (1998).