Reverse Engineering of Software - An analysis of the possibility to contractually restrict reverse engineering of trade secrets in software

Abstract

This thesis addresses the possibility to contractually restrict reverse engineering of trade secrets in software in the light of a systematic incoherence between two EU directives, the Software Directive and Trade Secret Directive. Mentioned directives are namely incoherent regarding the permissibility of contractual restrictions of reverse engineering which causes uncertainty about license provisions' legitimacy. The purpose of this thesis is to address if one should be able to contractually restrict reverse engineering of trade secrets in software, and if so – to what extent. The thesis will also suggest contractual provisions for restricting reverse engineering which can be deemed legitimate based on the performed analysis of this thesis. The analysis and conclusions rely on a legal assessment of the EU directives, preparatory works, case law, as well as legal literature. Furthermore, mentioned incoherence reflects a conflict of incentives for innovation which is strongly reflected in the software industry. The analysis is therefore nuanced by a literature review of economic and technological aspects of software and reverse engineering with the purpose of enhancing the relevance of the thesis in the software industry. The assessment is also done in relation to a fictitious case in order to make the analysis more legible and concrete.