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Software developers have successfully applied the affirmative defense of fair use to defeat claims that this intermediate copying violated the owner's copyright in the computer programmer. Courts have found the equitable nature of the fair use defense useful in analyzing claims of computer program copyright infringement because the functional elements are unintelligible unless the object code is decompiled. In Sony v. Connectix, 203 F.3d 596 (9th Cir. 2000), the Ninth Circuit applied the fair use doctrine to further expand the ability of computer software developers to legally make intermediate copies of computer software for the purpose of developing non- infringing products. The issue is vitally important to software developers because the reverse engineering of copyrighted material is used extensively in the industry. It is just as important to companies who own copyrights in popular software and systems and view the intermediate copying as theft of their copyrighted work. The result of the copier's efforts adds insult to injury because it generally leads to the development of a product that takes market share from the owner of the original work. This memo analyzes the recent Connectix decision and the Sega decision to try and determine the boundaries of the fair use doctrine when applied to the intermediate copying of computer software for the purposes of reverse engineering. The memo concludes that Ninth Circuit's reasoning supports intermediate copying as fair use where it is necessary and results in a final product that is transformative.


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24 Oct 2022
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  • Subject
    • Intellectual Property Law

    • Science and Technology Law

  • Journal title
    • Boston College Intellectual Property and Technology Forum

  • Volume
    • 2001

  • Pagination
    • 1-9

  • Date submitted

    24 October 2022

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