Is reverse engineering a lawful way to acquire trade secrets ? Legally Speaking

R everse engineering has always been a lawful way to acquire trade secrets embodied in mass-marketed products. This longstanding principle—on which software engineers as well as engineers in other fields so frequently rely— could be significantly undermined depending on the outcome of a case now pending before the California Supreme Court. The precedent set in this case could, in turn, influence courts in other jurisdictions. A key issue in the case—one that legal scholars and intellectual property lawyers have debated for many years—is whether an anti-reverse-engineering clause in a mass-market license should be enforceable. The California case, DVD CCA v. Bunner, presents this issue squarely, although the litigants have thus far primarily focused on whether Bunner had a free speech right (or not) to post a computer program on the Internet developed, in part, with aid of information derived from reverse engineering allegedly in violation of such a mass-market license. This column will explain why the California court should reaffirm the longstanding rule that reverse engineering is a lawful way to acquire trade secrets and should reject the premise that breach of a mass-market license forbidding reverse engineering is an improper means to obtain a trade secret. The litigants’ emphasis on free