Reverse Engineering IP

Abstract

For appropriation art of all types to survive an infringement inquiry, the resulting work must be creative, original, and transformative. However, the line between uses deemed infringing or fair is far from bright, at least in exante determinations by second-generation creators who rely on copyright limitations in the creative process. Accordingly, this Article examines the role that “reverse engineering” and other policies and doctrines have played in the inventive context to protect the “space” such second-generation innovators require to build upon and around existing inventions that justify the patent monopoly. Further, this Article explores how patent policy better protects and encourages that space than does copyright, theoretically and in practice.

Keywords: copyright, intellectual property, internet, digital technology, infringement, patent

JEL Classification: K10