MACROMEDIA INC. VS. IVANOPULO

	Introduction The Russian law does not give an unambiguous answer to the problem under question. On the one hand, the copyrights of the Macromedia company on a software product can not impede pursuing educational and scientific research goals. Not only can this limit the constitutional right to use specialized knowledge and skills (p. 2, article 44 of the Russian Constitution), but also obstruct the development of engineering thinking. And this would affect the competition in producing products with enhanced safety of programs subordinating copyright to subjective interests of individuals. But can the development of public scientific research be a private privilege only of the Macromedia company? On the other hand, the position of the company is clear since from its point of view the subject matter is not development of scientific and technical progress. It bears considerable financial losses due to Ivanopulo's unauthorized use of Micromedia-Software. The final goal of copyright is to ensure a balance of interests and stimulate development of creativity. On this basis we will analyze the key legal rules with which Ivanopulo should comply. This will allow us to conclude whether the demands of the Macromedia's manager Mr. Wozniak are sound from the legal point of view.
	legal rules The first rule is freedom of creativity an individual case of which is the right of reverse engineering. Reverse engineering enables any individual to produce a certain result using his own resources and efforts, whether or not the subject of research is protected by copyright or not1. 1[:] : what makes it confidential is the fact that maker of the document has used his brain and thus produced a result which can only be produced by somebody who goes through the same process [:] : (Saltman Engineering Co. Ltd versus Campbell Engineering, 1948, Reports of Patent, Design and Trade Mark Cases, S. 215). There is an extensive international practice of applying reverse engineering in various branches of science and engineering, including legal regulation. Let's take an example from the German practice: § 6 II Nr. 2 of the Law on Protection of Semiconductors stipulates that if the information was obtained through observation, study, disassembly or analysis of a machine available on the market, the distribution of this product does not lead to public dissemination of the design pattern incorporated in this machine. In this connection, a decision made by the Federal Court for Industrial Disputes Thrombosol-Reagenz on 16.04.1982 might be of interest: if a qualified chemist can easily make a qualitative analysis of a medicine, and if a quantum qualitative analysis (determination of quantitative relationship between different components) is a task of average difficulty, this activity can not violate the right of a trade secret. (Arbeitsrechtliche Praxis. Sammlung der Entscheidungen des Bundesarbeitsgerichts, der Landesarbeitsgerichte und Arbeitsgerichte, Nr.1 zu § 611 BGB, Betriebs-Berater 1982, s. 1795). As far as the British Juridical Practice is concerned, reverse engineering is also accepted as a means of obtaining information, including a trade secret. (Cornich, Der Geheimnisschutz im englichen Recht, Gewerblicher Rechtsschutz und Urheberrecht, Internationaler Teil 1975, s. 153). In Russia since the adoption of the Law on a Trade Secret on 22.01.99 the right of reverse engineering has been fixed by law: "[:] the information protected as a trade secret can be obtained in the result of research carried out at one's own initiative and at one's own expense, systematic observation and collection of data without using unlawful means, then it is considered to be obtained lawfully and independently despite the fact whether this information is a trade secret of another party." A party that obtained a trade secret of another party lawfully and independently has a right to use it without limitations, including treating it as a trade secret. Taking into consideration p. 2 of article 44 of the Constitution and acceptance of reverse engineering in Russia, it is clear that Ivanopulo's activity is within the legal framework. The second rule is the principle of combination of the author's private interests and public interests. The rule fixes the legal monopoly of the author on the results of his invention. However, this does not mean that the author should have unlimited rights to the results of his activity. If a software product has become publicly known with the conceit of the author, his right to it can not ignore the interests of other citizens. Not only does copyright guarantee the protection of intellectual property, but it also fixes the right of every individual to use the achievements of society. Thus, this rule is also met by Ivanopulo. The third rule is unconstrained study of inventions. Everyone has a right to use social achievements without constrains and fix the rights to the results of research in accordance with the copyright. An individual case of reverse engineering is the right of decompiling a software program (transformation of the program mechanical code into the initial text in order to study its structure)2. 2We assume that disassembling (translation of a program code into Assembler) should be considered from the legal point of view as a synonym of decompiling since not all programming languages might be known by the Law. Ivanopulo does not do anything unlawful studying a software product of Macromedia. However, unconstrained study of the program is admitted if it does not impair any lawful interests of authors. And visa versa, if the interests are impaired, the copyright can be infringed. Additionally, article 15 of the RF Law on Legal Protection of Software Programs and Data Bases states that the information obtained in the result of decompiling can not be used in another program. As far as decompiling (disassembling) is concerned, it is a legal right which can infringe individual interests. Thus, Ivanopulo's activity complies with the third rule of copyright. Are the demands of Mr. Wozniak sound?
	Legal humanism or antisocial behavior Usually lawful interests of an author can be unlawfully infringed only by antisocial actions. For instance, will a well known lawyer's copyright of Publicationss be infringed if an ardent student uses his assertions in order to justify his indignation against the most unashamed plagiarism?! Will copying of a manuscript in order to replenish the lost records when it is transferred to another archive be a violation of copyright?! Evidently, it won't. But it would be a different thing if a poor student is trying to use the authority of a well known lawyer in order to make some additional money since his stipend is not paid timely, and is passing somebody's Publicationss for his own; as well as if an employer of the archive started selling the copies of the manuscripts. Such actions are unlawful. In the above examples the actions are not antisocial. On the contrary, in the first case they assist in eradicating violation of copyright, and in the second one they serve the course of education. Consequently, can the development of scientific and technical progress and exercising constitutional rights of reverse engineering be considered antisocial?! Transformation of the objective code into the initial text for the purpose of studying the structure and encoding the software program (decompiling) is a legal action according to the Law on Legal Protection of Software Programs and Data Bases. Accordingly, Publicationss of the results of such work should not be considered unlawful. Thus, there is nothing unlawful in studying the program. But can the writing and dissipation of the program "crack" be considered beneficial for the society? Evidently, the production of this program is in the center of "fellow feelings" of the Russian users with low incomes. But this infringes the property rights of the Macromedia company. So, the research of Ivanopulo in disassembling the Macromedia's software product results in producing a program which is harmful in the proper sense of the word. And if we assume that Ivanopulo produces harmful programs, not only the third rule of copyright is impaired. What is a harmful program, and is it possible on this ground to make Ivanopulo waive its right to inform the public of the results of its programming studies?
	A harmful program or a disassembled model This question is addressed by article 273 of the Criminal Code "Production, usage and distribution of harmful software programs". It speaks about production of software programs or making changes that designedly lead to unauthorized [:] modification [:] of programs. The court practice has shown that article 273 of the CC speaks about production and distribution of computer viruses or various logic bombs, Trojan horse and worms that inflict destructive changes to the programs. The article does not explain the listed terms. There is no list of harmful programs either. It can be assumed that a so called crack is also a harmful program. It envisages the changes in the code that can result in unauthorized modification of the entire program information3. Thus, its production can be regulated by article 273 of the CC. But lawful decompiling has nothing to do with producing a harmful program. Decompiling means transformation of the program code into the initial text in order to study the algorithm of the program operation. An individual case of decompiling is the usage of programming languages such as C, C++ and Assembler (disassembling). The obtained information can be transformed into a program as a natural result of disassembling. It is forbidden to use it in another program but it is not forbidden to produce a disassembled model. But how can one get legal protection if a programming language (disassembling is a process of translating a program mechanical code into Assembler, which is a creative process to certain extent) is not subject to protection according to the Law on copyright and allied rights? So, a disassembled model is subject to protection by copyright. And this excludes liability in accordance with article 273 of the CC, which is considered consummated as soon as a harmful program is produced. For this there is neither objective (the absence of antisocial behavior) nor subjective components of consummation (a reverse engineer makes a stipulation about the purpose of research work). The objection that article 273 of the CC is consummated if a harmful program was produced despite of the motives should be dealt like this: experts will face a complicated problem - they will have not only to establish "the harmfulness" of the disassembled model but also to admit its usefulness for the program. It is impossible to say that the result of disassembling can not "damage" the program. It can. But disassembling is not an unlawful action. Otherwise, the law will not provide for the rights of reverse engineering assuming that a reverse engineer is bona fide. First, a disassembled model can be used to decompile file viruses. Second, it is possible to develop more reliable protection systems since a disassembled model is a result of the analysis of "holes" in the program structure. In addition, the disassembled model can be analyzed by experts from Macromedia. In other words, can you produce the arms if you very well know that they can kill a man? Well, it can kill a man, but it can also save the life of the same man. It means that it depends on how they are distributed and used. But we have not addressed this issue yet.
	A right or a penalty So, a disassembled model by itself can not be considered a harmful program. Is it lawful to place disassembled models on the site if Ivanopulo does not break any Russian laws? We must admit that regarding production of a disassembled modal the law is on Ivanopulo's side. But in the matter of distribution of these programs the copyright law is rather on Macromedia's side4. Namely, a disassembled model can not be used for the actions that impair copyright. In this case the interests of a copyright holder are impaired by its distribution in the form of the program. The existence of a "crack" is allowed by law, but it forbids: a) to use a "crack" in another program, b) to impair copyright by other actions which include distribution of the program. And how can a "crack" be used in another program without being distributed and disseminated among users? Thus, the distribution of the disassembled model can lead to negative consequences. If the program was distributed, the law envisages a legal response to the use of the disassembled model - a legal liability. It is not necessary that a reverse engineer offer his services in applying his "trapdoors" for unauthorized modification of programs, but the criminal law implies a concept of indirect intent: a reverse engineer is indifferent to the result of using a disassembled model, but understands the consequences of its use. Of course, a reverse engineer can not incur liability for other parties. Criminal liability is strictly personified. However, it looks that he assists to "cracking" of software products (indirect intent and purposive lucrative motive: like "if someone wants to send me a couple of dollars, I don't mind"). It is easy to misuse the generosity of copyright, and without producing a harmful program to cross the border-line beyond which a balance of interests is disturbed not in behalf of the reverse engineer. In conclusion we should say that production of a disassembled model does not mean production of a harmful program. But one should not hurry to begin its distribution despite the absence of harmfulness. On the one hand, assuming the right of any author to publish the result of his work, the Publicationss of a disassembled model may be qualified as unlawful. On the other hand, if the program was distributed, it should not impair the rights of copyright holders. And this is quite difficult to justify. In this situation, the use of a "crack" may be qualified as unauthorized modification of the program, and the "crack" as a means which damages the initial program code. On this ground a reverse engineer can be prosecuted (indirect intent in the subjective side of complicity according to article 273 of the CC). With regard to this, Ivanopulo should realize the risk associated with distribution and subsequent use of "cracks". But the reference that a reverse engineer does not incur liability for unauthorized application of the disassembling results and the announcement of the purpose of program studies in any form without recommendations and instructions on their unlawful usage are attenuating circumstances. They do not exempt from the liability for aiding unlawful use of the results of disassembling if this fact is established in the court. However, up to the present time the arguments of Macromedia are limited to emotional indignation, to which everyone has a lawful right. In this case it is necessary to mention that the market is built upon the strict law of competition. If the Macromedia specialists can't ensure the safety of their product, then no kind of emotion can serve as justification for threats to call the reverse engineer into account. It is the reverse engineer who has a right to take a legal action and require that the actions impairing the right to use the result of his work should be abated and that the moral damage affecting his honor, dignity and business reputation should be amended. However, once the Macromedia company finds at least one version of the software product "cracked" with the help of Ivanopulo's "crack" and takes a legal action, the distribution of the results of such a programming activity may result in negative consequences (in this case in-house testing of "cracks" for breaking the program code does not have a legal effect; like as if a psychologically unbalanced manager shot himself with a gun of a Russian programmer in order to test its killing power, and then sued him for such a powerful weapon). In other words, the Ivanopulo's activity is within the legal framework. However, it will be such only until the unlawful nature of the use of the disassembled model is established on the ground of the fact of "cracking" a software product. In this case the court may share the position of the company and rule that Macromedia-Software's "cracks" are not to be distributed. 3As it is known, lawful modification is defined in articles 1, 15 of the RF Law on Legal Protection of Software Programs and Data Bases. 4Distribution of a program is providing access to the software program in any physical form and any way, including the Internet.