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Is it illegal if you create a backup of an HDD that has copyrighted software installed on it?

This could be anything from legally purchased games and or expensive popular graphics/video editing programs, just as an example.

Is this backup an illegal copy of the original HDD?

LateralTerminal
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2 Answers2

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You're allowed to make backups of copyrighted software, as long as you are authorized to use the software, the backups are not distributed, and they are destroyed when/if you are no longer authorized to use the software.

17 USC §117(a):

(a) Making of Additional Copy or Adaptation by Owner of Copy. -- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) ...(not very helpful)...or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

The law is usually used to justify copies of the installation media, but it would be unconscionable to cut your rights off there and make backups illegal for machines containing copyrighted software. After all, with such an interpretation, no Windows machine could be backed up since Windows is copyrighted.

cHao
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    It would be legal even without such a law. Making backups is part of the ordinary use of the software. Ordinary use by people who lawfully possess a work is never restricted by copyright in the United States. – David Schwartz Nov 15 '17 at 00:10
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    Making backups wasn't part of "ordinary use" back when the law was written. Most software was designed to run directly off a floppy disk (or tape) rather than being installed, hard drives wouldn't really be a thing for a few more years yet, and copy protection was everywhere. Without the law, we might never have come to the point where it's just something you expect to be able to do. – cHao Nov 15 '17 at 00:23
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    @cHao: "Most software was designed to run directly off a floppy disk (or tape) rather than being installed" - and making backup copies of those floppy disks arguably was part of "ordinary use", wasn't it? "copy protection was everywhere" - huh? Could you provide an example for that, please? The only "copy protection" from the floppy era I know was indeed a protection against running the software without being authorized to do so - e.g. by having to match some kind of a (printed) key that couldn't easily be duplicated, in contrast to the actual software. – O. R. Mapper Nov 15 '17 at 04:41
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    @O.R.Mapper Here's an overview of floppy disk copy protection techniques. Wikipedia has some information on the subject too, and there's a fascinating in-depth look at some of the more creative anti-copy systems here. – Pont Nov 15 '17 at 08:27
  • I also think you could look at this for crazy things done to prevent copy https://www.youtube.com/watch?v=HjEbpMgiL7U – LateralTerminal Nov 15 '17 at 15:45
  • How does this work alongside the EULAs that permit only one backup copy to be made? This law seems to imply that any number of backup copies is permitted. Furthermore, some EULAs don't mention backups at all so I assume that those implicitly prohibit backups altogether (by virtue of the fact that they don't explicitly permit them)? – micheal65536 Nov 15 '17 at 17:06
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    @MichealJohnson: You have rights too. The law says you can make backups. Plural. The EULA can say whatever it wants, but a piece of paper written by some company -- especially a piece of paper you don't even get to see til you've given them money! -- doesn't take your rights away just because it says it does. If the company actually tried to enforce a "one backup" clause, and particularly if it tried to forbid normal backups of the system where the software's installed, the clause would almost certainly be deemed unconscionable and thus unenforceable. – cHao Nov 15 '17 at 17:45
  • @cHao Thanks for the clarification, I am familiar with EULAs that don't actually hold up in court, and users' rights that supersede the EULA (or other terms of use in other situations), but I wasn't sure if that would apply to this situation. But I don't think that the fact that you can't read the EULA until you've already paid money and implicitly agreed to it by opening the box or installing the software is really a factor, otherwise it would be impossible to invalidate practically every EULA these days. – micheal65536 Nov 15 '17 at 18:00
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    @MichealJohnson: It's less that you don't get to see the terms before paying, and more how much power they try to grab. "You can't reverse engineer the software" will generally be deemed enforceable, as the law already agrees. "MegaCorp gets to name your firstborn son"? Not so much. :P "You don't get to do this thing the law explicitly says you can do without our permission" is probably closer to the "not so much" end. – cHao Nov 15 '17 at 18:32
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    @MichealJohnson actually the click-wrap and shrink-wrap EULA's have been found unenforcable in US courts and the not seeing the terms (and being to agree or not) beforehand was one reason though not the only. Generally as cHao points out there are certainly some terms that will be held unenforceable just due to being utterly unreasonable (naming your first born certainly is, but so is for example holding company employees blameless in unconnected situations e.g. burglary). There seems to be some end consumer bias also. Companies fare worse in fighting against EULA's. – DRF Nov 15 '17 at 22:47
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    Has any vendor ever successfully enforced the requirement that all backups be destroyed when your license ends? – Barmar Nov 15 '17 at 23:17
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    @Barmar: I highly doubt it, at least on its own. To even get to that point, they'd have to be able to show that (1) you made backups in the first place, which even now is not a universal practice; and (2) that you aren't licensed anymore, even under another name. Add to that that the company might be opening itself up to financial liability if they demand that you destroy your system backups the day before your server crashes... – cHao Nov 15 '17 at 23:30
  • @cHao Exactly. The lawmakers who wrote that provision clearly didn't think it through. Which is hardly surprising -- Congressmen are notoriously ignorant about technology, and frequently write legislation that techies know is nonsensical. – Barmar Nov 15 '17 at 23:39
  • It may be worth noting that software is typically sold via licensing. So how often is it illegal for you to possess the software, as long as you don't use it without a license? – jpmc26 Nov 17 '17 at 00:42
  • Another interesting point that I have no idea the legal implications of: computers do all sorts of copying internally as part of their normal operations. For example, it's impossible to execute anything directly off of a disk. The operating system must copy the code off of the disk and into RAM, then copy it from RAM into the cache, then copy it out of the cache and into the instruction register, before it can even begin to execute it. Hard drives can also make copies of pieces of files internally if they detect bad sectors. SSDs copy around blocks when parts of blocks need to be rewritten. – alex.forencich Nov 17 '17 at 01:21
  • @jpmc26: The rightsholder has the right to control how many "originals" are out there. So as i figure it, if you can only legally get a copy with a license, then the right to possess the software is attached to the license. So if the software came on a disc, or if you downloaded it via a private link, then when you transfer the license, you no longer have rightful possession. On the other hand, if the program is downloadable by the general public, then possession after transferring the license is probably OK. – cHao Nov 17 '17 at 17:30
  • @alex.forencich: That's what (1) covers: "that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner". It's not very helpful when talking about backups (which aren't an essential step), but allows the copying from disk to RAM to cache etc that you have to do to run the program. – cHao Dec 04 '19 at 14:51
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Copyright law (17 USC 117) specifically allows this:

it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program

if you are the owner of a copy of the computer program, provided:

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

There seems to be a bit of a meme out there that you can make only one backup copy (here, here, here) but the plain language of the statute does not support that interpretation, and "all archival copies are destroyed in the event..." would be incomprehensible if you were only allowed to make a single backup.

Only software enjoys this additional permission to archive. The distinction between "program" and "data" is not entirely clear, but the definition of computer program ...

a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result

can be reasonably interpreted to include datafiles that are read in order to make sounds or display images. (See the US Copyright office FAQ regarding non-program materials and backups).

user6726
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    The meme is probably due to EULAs trying to over-assert the copyright holder's rights. I've seen several that say "one backup copy". – cHao Nov 14 '17 at 21:09
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    @cHao, the "archival copies" language dates from 1980. Prior to that, you couldn't make a backup unless the EULA explicitly permitted it. The EULAs from that era that I've seen generally explicitly state "one copy for backup". – Mark Nov 14 '17 at 22:22
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    +1 Only software has permission to be archived? What about data? That can't by archived? I'm sorry, could you explain with a source. – LateralTerminal Nov 14 '17 at 22:31
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    @LateralTerminal: The law allowing backups specifically applies to "computer programs". The extent to which data is a computer program, that's the extent to which the law applies. But basically no one sues for copyright infringement over backups. I like to think it's because they're afraid of just how far the court will go in deciding that copying (but not distributing) digital media constitutes fair use. – cHao Nov 15 '17 at 15:37
  • @cHao thank you. So, if I'm understanding that an MP3/MP4 is not a program so it can not be backed up? – LateralTerminal Nov 15 '17 at 15:44
  • @LateralTerminal: I'm not aware of any law explicitly authorizing such a backup, and i haven't looked into the case law around backups of copyrighted data. It may well be covered under fair use, though. – cHao Nov 15 '17 at 15:52
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    @LateralTerminal - "So, if I'm understanding that an MP3/MP4 is not a program so it can not be backed up?" ... unless it constitutes fair use. But as a noncommercial use of a published product with effectively zero effect on the potential market of the original, and despite being a complete copy, my own unqualified guess is that it would be fair use. – Jules Nov 15 '17 at 16:40
  • One could argue that an MP3 or MP4 is a form of computer program because it's a file containing instructions telling a computer how to do something (though I'm not sure how "computer program" is legally defined). That's the sort of thing an evil company would do, so users should also be able to do it. – user253751 Nov 15 '17 at 21:33
  • Ultimately we will have to wait for SCOTUS to rule on the data / program "difference". – user6726 Nov 15 '17 at 21:53
  • @immibis By that logic, even a plain text file is a computer program, because it can be treated as instructions telling a computer what characters to display on an output device (e.g. 65 is the instruction to display A). Conversely, an executable program is just data to a disassembler. Code vs. data is a matter of perspective. – Barmar Nov 15 '17 at 23:22
  • @Barmar Yes, and? – user253751 Nov 16 '17 at 03:29