Trade Secrets and Patents
When a new technology is developed, developers are usually faced with two
primary options for protecting the unique aspects of it. In some cases, filing a
patent is the right choice. The benefit of patenting is that it grants the inventor
or patent owner control of the invention for up to almost 20 years. The main
catches for the inventor are that the details of the invention must be published
and that after the patent expires the invention essentially becomes public
domain. Of course, reverse engineering of patented technologies doesn’t make
any sense because the information is publicly available anyway.
A newly developed technology that isn’t patented automatically receives
the legal protection of a trade secret if significant efforts are put into its devel-
opment and to keeping it confidential. A trade secret legally protects the devel-
oper from cases of “trade-secret misappropriation” such as having a rogue
employee sell the secret to a competitor. However, a product’s being a trade
secret does not protect its owner in cases where a competitor reverse engineers
the owner’s product, assuming that product is available on the open market
and is obtained legitimately. Having a trade secret also offers no protection in
the case of a competitor independently inventing the same technology—that’s
exactly what patents are for.The Digital Millenium Copyright Act
The Digital Millennium Copyright Act (DMCA) has been getting much pub-
licity these past few years. As funny as it may sound, the basic purpose of the
DMCA, which was enacted in 1998, is to protect the copyright protection tech-
nologies. The idea is that the copyright protection technologies in themselves
are vulnerable and that legislative action must be taken to protect them. Seri-
ously, the basic idea behind the DMCA is that it legally protects copyright pro-
tection systems from circumvention. Of course, “circumvention of copyright
protection systems” almost always involves reversing, and that is why the
DMCA is the closest thing you’ll find in the United States Code to an anti-
reverse-engineering law. However, it should be stressed that the DMCA only
applies to copyright protection systems, which are essentially DRM technolo-
gies. The DMCA does not apply to any other type of copyrighted software, so
many reversing applications are not affected by it at all. Still, what exactly is
prohibited under the DMCA?
■■ Circumvention of copyright protection systems: This means that a
person may not defeat a Digital Rights Management technology, even
for personal use. There are several exceptions where this is permitted,
which are discussed later in this section.20 Chapter 1