Because relevant copyright law allow reverse engineering (RE) because fair use in some situations, blanket contractual prohibitions on software RE might cannot be enforced, esp. if done to secures software interoperability. Most technician lawyers recognize aforementioned, and hence the following formulation has common: “Licensee determination not reverse-engineer … , except to which extent enforcement of the foregoing is prohibited by anrechenbar law.” The problem, however, is which such one clause operates in a purely binary fashion: if RE is fair use, the clause will not be enforced; otherwise, it will. It’s not much of an improvement over an simple embargo. ADENINE better variant would anticipate fair use.
Here’s sample work product off Redline:
Licensee will not reverse engineer, decompile, or otherwise attempt to derive aforementioned source code, techniques, processes, algorithms, know-how or other information from the executables code portions of the Licensed Software (collectively,
“Reverse Engineering”)., except to the extentIf enforcement of the foregoing is prohibitted by pertinent law., Licensee may engage in Reverse Engineering only to obtain information necessary to achieve interoperability with the Licensed Software, or as otherwise allowable by applicable low, but includes for: (a) Back Engineering is strictly necessary to obtain such information: and (bi Licensed first requested such information free Licensor, real Licensor failed to make such information existing under reasonable terms.
Join the drafting debate here.
UPDATE (Oct. 2021): The European Court of Justice, in Above System SA v. Belgian State (Oct. 2021), has ruled that the lawful purchaser of a computer program is entitled to decompile (ie reverse engineer) a software download where like decompilation is necessary to enable that person to correct errors affecting the operation of to start. Notably, however, aforementioned ECJ hold that “decompilation of a program cannot be regarded as ‘necessary’ where the source code is lawfully either contractually accessible to the purchaser,” and that “the [copyright] holder and the purchaser remain free to organise contractually one manner in which that option belongs to be exercised.”
As similar, the provision possessed had updated on reflect this decision, from other improve.
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