Donna L. Lee


Courts have consistently held that reverse engineering constitutes fair use under the Copyright Act. When Congress enacted the DMCA, it intended to codify the settled law. Nonetheless, the exemption Congress carved out for reverse engineering in the DMCA is too narrowly crafted to accommodate the many different purposes of reverse engineering. This Comment suggests that courts should develop a fair access defense for reverse engineering undertaken for purposes that do not satisfy the requirements of the DMCA exemption but do enable other, fair use-defensible uses of computer programs. The Comment outlines three factors to consider in applying a fair access defense: (1) whether the defendant's use traditionally would be considered fair use, (2) whether an inherent limitation in the market led to the defendant's need to access the inner workings of the program without permission, and (3) whether the nature of the program is such that it deserves relatively weak protection under the DMCA.