Reverse Engineering(逆分析)에 대한 法的 小考 - 입법연혁과 대상산업의 변천에 따른 고찰을 중심으로 -

Reverse engineering is the process of discovering the technological principles of a device, object or system through analysis of its structure, function and operation. It often involves taking something (e.g. a mechanical device, electronic component, or software program) apart and analyzing its workings in detail, usually to try to make a new device or program that does the same thing without copying anything from the original. Despite the popularity of the concept of reverse engineering with sections of the engineering community, the legislative position restricts reverse engineering of hardware and makes reverse engineering of software legal only under very limited circumstances in Europe. In the US, slightly more freedom is available to reverse engineers, but great care is still needed to avoid infringement. It is widely accepted that copyright does not protect "ideas", but only "expression"; that is, the way in which those ideas are "expressed". This idea is carried through into similar rights, such as Topography Rights. Copyright subsists in "copyright works". Reproduction or translation of the whole or a substantial part of a copyright work will constitute an infringement of copyright. Top level specification are themselves copyright works, and intermediate level specifications (source code and circuit diagrams) and lower level specifications (assembly code, net lists and node lists) may also qualify as copyright works. A common assumption is that the top level of a design specification is unprotectable by copyright, since it consists only of "ideas". Some assume that this applies also to some lower levels insofar as they cover "algorithms" and not actual code. On this assumption, "clean-room" reverse engineering techniques succeed in breaking the chain of copying, since if only unprotectable ideas are communicated to the new design team by the reverse engineers, the new design team cannot be copying protectable "expression". However, this approach is incomplete. Firstly, it ignores the fact that the intermediate copies made during reverse engineering are themselves infringements. Secondly, modern engineering tools can directly accept some high-level specifications, which are thus akin to executable code rather than abstract description.