12

Lets say you purchased software in the 90s or early 2000s, but lost the license key and or the disc. Another possibility is the company is no longer supporting and or does not provide older versions of its software.

What you do have:

  • the receipt with your name on it.
  • the box from over 15 years ago.
  • a statement from your bank proving it was purchased with a credit card with your name on it with the same date as the receipt.

The computer with this software crashes and the license key is lost in a unrecoverable hard drive.

In layman's terms, is it illegal to pirate the software by some means and crack it to get the product that was paid for to work?

To be clear in this scenario, the item in question is a box with a CD containing the software and inside the same box a key is included to activate said software. This box is purchased from a retail store.

The pirated software will only be used by the original owner as a replacement and not distributed or sold.

  1. Is it illegal to create an unauthorized copy of the software.

  2. Is it illegal to circumvent the software license key checks?

  3. Is the receipt enough to prove you own the key and if not why?

  4. Is there law to protect the consumer from having to purchase the software twice in this situation?

LateralTerminal
  • 784
  • 2
  • 7
  • 22
  • If you legally have a legal copy of the disc, but lost the license key, that is probably a different situation than if you still have the license key but lost the legal copy of the disc, or you lost both. – Brandin Nov 08 '17 at 18:54
  • @Brandin I need someone to actually confirm that is true with a reference. If that is the case, and it seems fit for this to be split into 2 questions, I will do so. Otherwise, I'm not changing my question. – LateralTerminal Nov 08 '17 at 19:05
  • I suspect that the answer is that you didn't purchase the software in the first place, but rather a license to use the software, so the answer depends on the license terms. (I further suspect that the license terms won't be favorable to your plan and that the chance of your getting in trouble for doing this is infinitesimal regardless of the legality or lack thereof, but that's not on topic here.) – phoog Nov 08 '17 at 19:40
  • @phoog Does it count as you purchasing the software if the disc comes packaged with the key in the box? Because I can make it more clear in the question that the software comes packaged with the key in the box from a retail store. What defines purchasing software? Do you not actually own the disc itself? – LateralTerminal Nov 08 '17 at 19:43
  • 2
    If you buy a disc, you own the physical copy, and you've usually paid for a license to use the contents, but you don't own the contents. Most EULAs spell this out in painful detail. – cHao Nov 08 '17 at 20:16
  • @cHao Great, we have concluded that the physical copy is owned by you and that you have paid to use the contents of the disc. The scenario has been established. Now, the question is: Is it illegal to pirate the software if you lost the original? The method being pirating the software and then cracking it. What is the legality of that specifically? – LateralTerminal Nov 08 '17 at 20:20
  • 1
    @LateralTerminal do you have the license agreement? If so, have you read it? – phoog Nov 08 '17 at 20:22
  • @phoog This is a hypothetical scenario. Lets say that the license agreement says the usual stuff you'd think it would say to prevent piracy. Lets say the license agreement said specifically. "No, you can't do this." Does that mean anything? Can law actually enforce that? OR is there law that protects consumers in this situation? – LateralTerminal Nov 08 '17 at 20:27
  • Don't use the word 'pirate' if you want a clear answer. The meaning is vague (copying illegal media, circumventing the protection mechanism, copying a key, etc. could all possibly be grouped into piracy), not to mention it presumes wrongdoing. Say instead, for example, "is it legal to copy my friend's license key, who also has a legal copy, because I lost my key (and I still have the original media that I legally purchased)." – Brandin Nov 08 '17 at 20:58
  • @Brandin I can't say that because it is obviously stealing to use someone else's product key isn't it? I agree that maybe piracy is not a PC term to use for this question what would be a better word to use than piracy? – LateralTerminal Nov 08 '17 at 21:00
  • @Brandin I'm changing my question title to say "Is it piracy to obtain software you purchased in an alternate way?" I think that is worded better and avoids that problem – LateralTerminal Nov 08 '17 at 21:06
  • Clearer and more accurate words than 'piracy' include for this discussion: "unauthorized copying of software," and "circumvention of software license key checks." Those are basically the two alternatives you're proposing. Copying someone else's key and modifying the software to prevent a check would probably both be considered circumvention. – Brandin Nov 08 '17 at 21:49
  • Don't add "bonus questions" and extra alternatives. This is becoming like a "choose your own adventure" style question. Limit the scope to get better more precise answers. – Brandin Nov 08 '17 at 21:53
  • @Brandin Okay how's that now? Any more suggestions? – LateralTerminal Nov 08 '17 at 22:00

2 Answers2

9

The DMCA prohibits circumvention of technological measures that effectively control access to a copyrighted work. So you can't legally "crack" the software, period -- even if you own a disc containing the software and have a valid license to use it, a license to use the work is not authorization to circumvent access controls.

So if the disc is copy-protected, by my understanding of the DMCA, you're kinda screwed. (The company might be willing to provide you a replacement copy, even if only to maintain the illusion that the software is "licensed, not sold". But you can't make one yourself.)

Likewise, if you have a copy of the disc but have lost the license key, you're screwed. Even if you could prove beyond any doubt that you are the licensee, there's not any law i'm aware of that would compel the copyright owner to provide you another license key. And courts have held that distribution of license keys without authorization is a violation of the DMCA. So whoever might provide you another key, if they're not the copyright holder, has broken the law.

If you managed to copy the disc from a friend (without circumventing any kind of copy protection), and had your own license key, you might be in a better position. Many EULAs allow you to make a backup copy. Even if they didn't, copyright law does, so there's a possible case for fair use.

cHao
  • 2,025
  • 1
  • 13
  • 22
  • I'm modifying my question to reflect that you have the receipt in your name as evidence that you purchased the software and are in fact in possession of the key, even though the key itself is not available. Can you reflect that in your question? – LateralTerminal Nov 08 '17 at 21:07
  • Why do you think having a license key but no original media would be a better legal position than having the original media but no license key? – Brandin Nov 08 '17 at 21:09
  • 1
    @Brandin Because, If you were in court and they wanted to prosecute you for stealing software and you have evidence that proves you actually purchased this software I do not understand how you could be prosecuted. That is why I do not think this answer is currently valid – LateralTerminal Nov 08 '17 at 21:11
  • 2
    @LateralTerminal If you still have the original media, box, etc. but for some reason lost the license key I would find that more convincing proof that you legally purchased the software than if you just a license key. Courts may decide differently (are there cases like that?). – Brandin Nov 08 '17 at 21:28
  • @Brandin There we go. Thanks to that comment I now know I've started to structure the question properly. I want all things considered and addressed in the answers for this questions. – LateralTerminal Nov 08 '17 at 21:32
  • cHao, I see you mentioned the receipt. Thank you! However, the receipt is going to have your name on it as I wrote in my question. Please change your answer to reflect that! If I have to make it more clear I will add that you have evidence that not only does the receipt have your name on it but you have statements from your bank that it was purchased with your credit card. – LateralTerminal Nov 08 '17 at 21:38
  • @Brandin: The original box etc would be compelling evidence. The original disc, without all that, though...not so much. – cHao Nov 08 '17 at 21:38
  • @LateralTerminal: The name on the receipt is not necessarily the name of the person the software is for. So my point there doesn't change. – cHao Nov 08 '17 at 21:39
  • cHao I think that argument is a lot harder to make with the combined evidence. You wouldn't keep the box, manual, etc. when you are gifting it to someone else would you? The box being in your possession is the evidence that you in fact did not gift it. – LateralTerminal Nov 08 '17 at 21:48
  • 1
    @LateralTerminal: Nope. But if you cared enough to keep all the original stuff that came with the disc, then you probably kept the license key too. :) Every piece of software i can remember buying a hard copy of had the key on either the CD case or the manual, precisely so they are likely to stay with the software. – cHao Nov 08 '17 at 21:51
  • cHao, I upvoted your question even though I didn't think it's the correct answer. I like your answer a lot because it has a lot of good information and things to consider. I think it might be technically correct in most aspects but the other answer is more realistic about how a court would handle the case (in my opinion.) I wanted to see this answer from both perspectives since a lot of law is opinion based. – LateralTerminal Nov 14 '17 at 20:01
4

"Piracy", when you are not talking about murderous thugs attacking ships, usually means unethical behaviour related to copying copyrighted works. Piracy is about ethics, "copyright infringement" is about things that are illegal. Obviously then if you paid for the software, and didn't sell it on, or gave it away, then doing whatever it takes to run the software is not piracy.

You bought the software with a license and a license key. You therefore have the right to use it. You may not have evidence that you have the right, and you may not have the license key that makes it technically possible, but neither is required to make the use legal.

Consider that if you went to court, no reasonable court would require that after 15 years you still have any evidence of the purchase. After two years, a court could say "if you cannot show evidence of the purchase, it is more likely that you made an illegal copy than that you own the software legally." After 15 years, that's not the case. And having some evidence of a legal purchase makes any claims that you didn't buy the software fail.

And it seems that using someone else's licensing key doesn't actually fall undert the DMCA, at least not according to the linked text.

gnasher729
  • 34,028
  • 2
  • 46
  • 88
  • "After two years, a court could say 'if you cannot show evidence of the purchase, it is more likely that you made an illegal copy" - Why would a court say this after 2 years but not after 15? How old is too old for the court to care and why do you think this (e.g. actual case example)? – Brandin Nov 12 '17 at 09:56
  • "using someone else's licensing key doesn't actually fall undert the DMCA" - citation needed. What "linked text" are you referring to? If you use someone else's license key to circumvent a license check, then that is a violation. – Brandin Nov 12 '17 at 09:56
  • 1
    gnasher729 can you add a source for "And it seems that using someone else's licensing key doesn't actually fall undert the DMCA, at least not according to the linked text."

    If, you can't find a source you can delete it from the end of your answer because it doesn't need to be a part of your answer to still answer my question.

     – LateralTerminal Nov 14 '17 at 15:30
  • As far as the bit about using someone else's license key, see https://www.loeb.com/articles-ipentertainmentcaselawupdates-20100428-actuatecorpvinternationalbusinessmachinescorpetal – cHao Nov 14 '17 at 20:00
  • 1
    Or https://www.leagle.com/decision/20081606555fsupp2d105111511 which is quite explicit: "By distributing a VLK [Volume License Key] without authorization, [the defendant] Wang effectively circumvented Microsoft's technological measure to control access to a copyrighted work in violation of the DCMA." – cHao Nov 14 '17 at 20:11