Right to repair software being granted by the European Court of Justice

[XWAUForceflow]

Summary

The European Court of Justice decided in a recent court case that there are particular situations in where it is legal to de-compile and reverse engineer a software to fix a broken or missing feature. While the ruling sets some limits to when you can do this, basically if you've been promised a feature or the software is not working you maybe legally allowed to fix the issue by yourself even if reverse engineering and de-compiling is normally not allowed.

 

Quotes

Quote

German Version:
Der Europäische Gerichtshof (EuGH) legt einzelne Vorschriften der Gemeinschaft zum Rechtsschutz von Computerprogrammen weit aus. Er hat vorige Woche geurteilt, "dass der rechtmäßige Erwerber eines Computerprogramms berechtigt ist, dieses ganz oder teilweise zu dekompilieren". Voraussetzung ist, dass dies zum Zweck der Korrektur von Fehlern geschieht, die das Funktionieren der Software beeinträchtigen. Dabei dürfen auch fehlerhafte Programmteile deaktiviert werden (Az.: C‑13/20).

Google Translate:

The European Court of Justice (ECJ) broadly interprets individual provisions of the Community on the legal protection of computer programs. Last week it ruled that "the lawful acquirer of a computer program is entitled to de-compile it in whole or in part". The prerequisite is that this is done for the purpose of correcting errors that impair the functioning of the software. Incorrect program parts can also be deactivated (Ref .: C ‑ 13/20).

 

My thoughts

This has the potential to be big, depending on how strict the guidelines will be set. The most interesting part I see here is how broad this can be interpreted. What actually entails 'impair the functioning of the software'? Does this include 'doesn't work on current hardware' or 'is not compatible with current OS versions'? Does this also mean that I as an individual can hire someone to de-compile the software and fix it for me? Which could lead to whole new business models being created. I am sure that this is not the last we hear about anything like this going to the courts, but boy does this potentially puts additional pressure on software companies to support their software. Though unfortunately I am afraid that this will further entice those companies to go even stronger with 'subscription only' models. (Because here they can stop this behavior much more effectively) This is pretty much 'right to repair' for software if you think about it.

Have not seen this posted before, sorry if I missed it.

 

Sources

https://www.heise.de/news/EuGH-Recht-auf-Reverse-Engineering-zur-Fehlerkorrektur-6215679.html

https://curia.europa.eu/juris/document/document.jsf?text=&docid=247056&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=9912038

[ScratchCat]

I’d be interested to see if this allows patching out any sort of DRM or licensing code to allow the program to continue to work once the licensing servers are shutdown.

 

Although I don’t have a use case for this right now it’s nice to have.

[RejZoR]

1 hour ago, ScratchCat said:

I’d be interested to see if this allows patching out any sort of DRM or licensing code to allow the program to continue to work once the licensing servers are shutdown.

 

Although I don’t have a use case for this right now it’s nice to have.

Or when they are plagued by junk like GFWL that is not operational anymore as a service, but you have games with it.

[suicidalfranco]

so... private servers of dead mmo are now legal?

[Delicieuxz]

This is good news. The EU CoJ made a similar ruling, regarding circumventing DRM, in 2014. The new ruling makes the CoJ's view broader and explicit.

 

2014: Europe's Highest Court Says DRM Circumvention May Be Lawful In Certain Circumstances

Quote

The Court of Justice next states that the legal protection covers only the technological measures intended to prevent or eliminate unauthorised acts of reproduction, communication, public offer or distribution, for which authorisation from the copyrightholder is required. That legal protection must respect the principle of proportionality without prohibiting devices or activities which have a commercially significant purpose or use other than to circumvent the technical protection for unlawful purposes.

 

The Court of Justice notes that the scope of legal protection of technical measures must not be assessed according to the use of consoles defined by the holder of copyright, but that rather it is necessary to examine the purpose of devices provided for the circumvention of protection measures, taking account, according to the circumstances at issue, of the use which third parties actually make of them.

 

The phrase "the lawful acquirer of a computer program" also alludes to the CoJ's 2012 ruling that people who purchase software become the owner of their particular copy of the software: "the copyright holder transfers the right of ownership of the copy of the computer program to his customer".

 

Related thread: You own the software that you purchase, and any claims otherwise are urban myth or corporate propaganda

 

 

5 hours ago, ScratchCat said:

I’d be interested to see if this allows patching out any sort of DRM or licensing code to allow the program to continue to work once the licensing servers are shutdown.

 

Although I don’t have a use case for this right now it’s nice to have.

 

Your wish seems to be granted. In addition to the EU CoJ ruling I gave a link to, a US federal appeals court made a ruling in 2010 relating to bypassing DRM. Then, in 2015, and 2018, the Library of Congress entitled people to circumvent DRM when doing so is necessary for a person to use their software or hardware.

 

2010: Court: breaking DRM for a “fair use” is legal

2015: The Library of Congress's New DRM Rules Are a Victory For Digital Freedom

2018: US government deems it legal to circumvent DRM to repair electronic devices

 

 

4 hours ago, suicidalfranco said:

so... private servers of dead mmo are now legal?

 

I believe they already were, at least in the US, under Library of Congress rules.

[Quackers101]

when DRM wants to break your hardware and limit your experience.

can we disable those DRM's? thanks.

[Delicieuxz]

8 minutes ago, Quackers101 said:

when DRM wants to break your hardware and limit your experience.

can we disable those DRM's? thanks.

If the limiting of your experience means the intended experience of the software or hardware is being obstructed, then, yes. There are authoritative decisions in both the US and EU that you can.

[Mark Kaine]

This also makes modding a "right" potentially...

 

If I was promised a playable game but can't play because devs decided a ridiculously narrow FOV that gives everyone nausea is an "OK" modders are now legally allowed to "fix" it...

 

Same for 30fps locks, etc...

 

 

You just need a defense insurance,  otherwise this law will not be worth the paper its written on.

 

45 minutes ago, Delicieuxz said:

If the limiting of your experience means the intended experience of the software or hardware is being obstructed, then, yes. There are authoritative decisions in both the US and EU that you can.

Exactly, DRM too! (you see how useless this law actually is, right, this will change nothing in this regard  - you'd also have to proof that the DRM actually has negative impact,  i mean we know it has, but proofing it is another question...)

 

 

 

[Kisai]

1 hour ago, suicidalfranco said:

so... private servers of dead mmo are now legal?

read: "sunset" of GAAS/SAAS.

https://drmario-world.com/en-GB/topics/

Quote

July 28, 2021

End of Service Notice

Thank you for playing the Dr. Mario World game.

The Dr. Mario World game's service will end on November 1, 2021 (Mon).
We would like to extend our sincere thanks to everyone who has played the game since it began service on July 10, 2019.

When the service ends, the game is unplayable. This has been par for the course with all the gacha-laden Japanese games.

[Mark Kaine]

1 minute ago, Kisai said:

When the service ends, the game is unplayable. This has been par for the course with all the gacha-laden Japanese games.

Yes, true for certain games,  but is it legal? It might be because of  "TOS" but I definitely question the legality of such a "TOS"... 

 

Also mmo=/=gacha game (even though many gacha games camouflage as mmo... but it really is "gambling" if getting little "treasures" is the main point of the game (hence = gacha)

 

 

[Delicieuxz]

41 minutes ago, Kisai said:

read: "sunset" of GAAS/SAAS.

https://drmario-world.com/en-GB/topics/

When the service ends, the game is unplayable. This has been par for the course with all the gacha-laden Japanese games.

Hosting servers and game accounts is a service for those who use them to play a game. But the game itself is a product.

 

Defining Key Concepts: Products vs. Services

 

All games which depend on server hosting to run will encounter the end of the service of a company supplying those servers, and account hosting. But that doesn't mean that people aren't entitled to continue the game experience through their own efforts, if they purchased the game as a product (as many did with WoW and other MMOs) - and I would include in that games for which people purchased a product component to it, such as a Nendoroid or even a micro-transaction purchase.

 

Games as a Service isn't a legal concept, and it actually flies in the face of the legal distinction between goods / products and services. GAAS is just a marketing buzzword - like "Windows as a service" is, despite that Windows, sold as perpetual licenses, is legally defined as a good / product. It's also software publishers and their lawyers attempting to blur the lines between what a good / product is, and what a service is, with an aim to find a way to circumvent the legal definitions of those things. But their propaganda still remains irrelevant to the law.

[Salv8 (sam)]

well at least this is a step in the right direction, it's the first step of MANY but it was inevitable that it was gonna be taken.

[Delicieuxz]

The Court of Justice needing to state that people are allowed to reverse-engineer software, but only for the purpose of repair, sounded a bit strange to me. But having looked through the CoJ's ruling, I didn't see a mention of reverse-engineering. But it does specify decompiling.

 

Quote

On those grounds, the Court (Fifth Chamber) hereby rules:

 

1.      Article 5(1) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs must be interpreted as meaning that the lawful purchaser of a computer program is entitled to decompile all or part of that program in order to correct errors affecting its operation, including where the correction consists in disabling a function that is affecting the proper operation of the application of which that program forms a part.

 

2.      Article 5(1) of Directive 91/250 must be interpreted as meaning that the lawful purchaser of a computer program who wishes to decompile that program in order to correct errors affecting the operation thereof is not required to satisfy the requirements laid down in Article 6 of that directive. However, that purchaser is entitled to carry out such a decompilation only to the extent necessary to effect that correction and in compliance, where appropriate, with the conditions laid down in the contract with the holder of the copyright in that program.

 

While decompiling and reverse-engineering can both be done for the same purpose, there is a difference.

 

Reverse-engineering doesn't have to depend on examining or having access to any of a software item's code, and is more driven by a person's own ingenuity to figure out how something works.

 

Decompiling software isn't just using your wits to break-down and figure out how something works, but is looking at the specific way a specific software item was coded (or the specific order in which things are processed in a program), seeing a developer's own work and potentially having it revealed precisely how they made it.

 

 

Despite what an EULA might incorrectly claim, a person is always entitled to reverse-engineer software, and a publisher doesn't have any authority to say a person cannot try to think through how their software works and make their own working version of it.

 

Decompiling software might be akin to seeing actual blueprints or, maybe someone would argue, a formula that includes what the developer thinks of as internal secrets (though, with some obfuscation).

[Quackers101]

on PC "EULA" is already used for a good time now to hurt personal information, and agree to content you dont want.

more so when some games abuse this for installing "malware" or collect data it should not have access to make the game function, often making you agree to third party collection and data through report functions or social media links (browser and browser data). or to even access the EULA you often have to go through their website link to find the site with additional data collection which might not be mentioned in the EULA. or using the EULA at a later date to something it knows about and has allowed under its EULA. Also updated EULA that doesnt say anything about what is new, so if a new third party software was added or new DRM/Anti-cheat, you will NOT be notified about this and their system or data access.

 

some may, like google or other big companies/sites.

[Kisai]

2 hours ago, Delicieuxz said:

 

 

Decompiling software might be akin to seeing actual blueprints or, maybe someone would argue, a formula that includes what the developer thinks of as internal secrets (though, with some obfuscation).

Decompiling does not let you produce a clean-room copy.

 

In theory though, it doesn't necessarily need to either. Games written with C# (such as those that use Unity) are basically the same as having the source code completely exposed. Many games that use LUA can likewise be decompiled with minimum effort. Various other frequently-used game engines also have their scripting languages easily decompiled, because that's been the trend. HTML + javascript and Flash (or transcoded from flash) are also extremely easily to decode.

 

So, these games engines that are entirely scripted, often can just just have the script engine and assets transferred to a different engine and the game becomes functional again. No decompiling is necessary to run it, just swap the functions that would have communicated with the original server with new ones.

 

 

 

[WolframaticAlpha]

FOSS: Forced and Open Source Software.