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I would like to know whether software cracking is considered illegal broadly (in the way that drugs are, for example, broadly illegal in many western countries), or is it a more complex question. I am most interested in legal state in western countries.

For example, suppose I'm cracking software (games) as a hobby. but I never actually "consume" these games - I never play them after they're successfully cracked. Furthermore, I never distribute the modified software (or the patch), and keep everything archived (suppose its also encrypted), just as a learning diary.

Suppose then, that an officer gets access to my storage (for example, I cross the border and officers want to clone my storage space), and realizes its packed with projects in progress and a suspicious encrypted archive. Obviously, not wanting to be detained forever, I provide the secret key and it shows that the archive is full of successful cracks.

Would I immediately be criminally charged just for posession - or would the prosecutors have to prove ill intent first?

The reason for this question arises from my understanding, that software tampering is a part of the "copyright" law; therefore, I'd presume that as long as I do not make a copy - all changes of the software that executes locally on my hardware, should be perfectly legal?

(Sorry on improper legal lingo - not my profession.)

John Z.
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    I think this will greatly differ between countries. However, if you don't distribute your "cracked" software nor sell it somehow, who's going to sue you? And for what? Copyright is (mostly) civil right, so a lawsuit would only be about money they lost. – PMF May 15 '22 at 18:59
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    @PMF I second this being jurisdiction dependent, but the question asks about illegality, not probability of a lawsuit. – sharur May 15 '22 at 19:22
  • Yes, the question explicitly asks about criminal sanctions, and you can commit civil wrongs without being sued, so assessing the (un)likelihood of a lawsuit doesn't seem to help address the question. – bdb484 May 15 '22 at 19:22
  • I didn't post it as an answer just because of this. I only wanted to point out that if one doesn't make money from it, the possibility of an actual legal impact is small, which is also pointed out in the answer. – PMF May 16 '22 at 07:02
  • This is highly dependent on the jurisdiction. For example, in Europe you can resell your only copy because you own it. You can also make a handful of copies for yourself and your family of copyrighted material. I'm not sure what European law says about cracking privately but I'd bet that there are jurisdictions that don't mind. – Peter - Reinstate Monica May 16 '22 at 09:35
  • @Peter-ReinstateMonica "You can also make a handful of copies for yourself and your family of copyrighted material." - Also of software? In my country, the Netherlands, making copies for private use is allowed for video, audio, and books, but explicitly not software. Backups are allowed though. – marcelm May 16 '22 at 16:30
  • @marcelm No, probably not for software. I think the law in the EU is unified in this respect. – Peter - Reinstate Monica May 16 '22 at 16:42

1 Answers1

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It is not correct to say that

drugs are, for example, broadly illegal in many western countries

Some specific drugs, or specific categories of drugs, are illegal in certain circumstances, by specific statutes. Which ones vary by jurisdiction. So the analogy breaks down.

As for the main question, if by "software cracking" is meant creating a modified version of the software that operates differently, for example by-passes authentication, or allows unlimited "lives", that would most probably be creatign a derivative work of the software.

Creating a derivative work, even if it is never distributed, is copyright infringement under US law: 17 USC 106 (2) lists as one of the exclusive rights of the copyright holder the right

to prepare derivative works based upon the copyrighted work;

This also covers the right to authorize preparation such works. So merely creating a "cracked" version of the software is technically infringement. However, infringement (of this sort) is not a crime, and no border officer or other government official will care about it in the slightest. It is up to the copyright owner to take legal action, normally by filing suit. If the modified software is never distributed nor advertised, it seems unlikely that the owner will ever even learn of it, and less likely that the owner will sue if s/he does learn of it. Damages in such a case, if the owner brought one, would probably be small, indeed not enough to make it worth the owner's time and trouble.

If the cracker starts with an instance of the unmodified original software,m and edits it in place, never making a new copy, s/he is still preparing a derivative work, and (unless permission was obtained, or the work constitutes a fair use) it is still, copyright infringement

If the modified software were posted online, the owner could send a takedown notice to the hosting site. If it were being sold, then a suit would be more likely.

If what the cracker creates is not a modified version of the software, but instructions for modifying it, it is less clear that that would even be infringement. If the instructions are for evading an access control mechanism, that might be unlawful under 17 USC 1201 the anti-circumvention provisions of the DMCA. But again it would be up to the owner to take legal action, the government will not care until and unless the owner takes action.

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

The above answer is specific to the but on this point the laws of other North American and European countries are, i believe, similar, as is the Berne Copyright Convention, at least on the matter of derivative works.

David Siegel
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  • I don't know enough to say for sure, but I think this answer is off-base. My understanding is that cracking does not typically involve making a separate copy of the software. One could download Photoshop, for instance, and then decide to either crack it or enter their license information. Cracking it would manipulate the the software, but it would not create a new copy. If that's the case, I don't see a copyright violation. If there is a copy being made by cracking, though, I think this answer would be correct. – bdb484 May 15 '22 at 20:58
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    @bdb484 Ever if cracking is done on a local disk, i probably starts by making a copy to be modified. But that doesn't matter. If I take an original painting (by someone else), and paint in an additional object, or otherwise change it, I have created a derivative work e3ven though I never made a copy. The right to make copies and the right to prepare derivative works are legally separate, even though they are often used together. – David Siegel May 15 '22 at 21:04
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    @bdb484 I have modified my answer to address editing in place, and be more explicit about derivative works – David Siegel May 15 '22 at 22:02
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    I'm not persuaded on the derivative-work argument. Mustn't a derivative work be its own original piece of authorship? The cracking program would probably satisfy that definition, but a cracked version of Photoshop is, I think, going to essentially indistinguishable to the user from a licensed version. If all the cracking program is doing is deleting code that checks for a license before launching, is that really an original piece of authorship? If not, it seems the software creator would have to pursue a contract claim rather than a copyright claim. – bdb484 May 15 '22 at 22:44
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    Thank you so much for the exhaustive answer, and your time! – John Z. May 16 '22 at 00:15
  • There are a set of limitations to 17 USC 106, such as: "117. Limitations on exclusive rights: Computer programs: (a) Making of Additional Copy or Adaptation by Owner of Copy." So making an adaptation is not necessarily infringement. (However, most cracking still won't be supported by this exception.) – towr May 16 '22 at 09:58
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    @bdb484 You copied it when you downloaded it, then you modified that copy, even if you did not as David Siegel suggests take the usual and sensible step of making an extra copy for edit/recovery purposes, and even if you did not, as most sensible professionals and hobbyists do, backup(*) your work at any point. (* Backups are of course, copies). – RBarryYoung May 16 '22 at 10:56
  • @towr 117 permits adaptations only when "created as an essential step in the utilization of the computer program in conjunction with a machine and ,,, used in no other manner," or for archival purposes. Also 117 almost never applies to commercial software. It applies only when the person making a copy or adaptation is the "owner" of a "copy", but commercial software markers are careful to word their agreements so that one buys a license, not a copy, in significant part so that 117 will never apply to their products. Indeed 117 is, in effect, obsolete, at least as regards commercial software. – David Siegel May 16 '22 at 13:04
  • @towr also wgile 117 limits the rights granted by section 106, it has no effect on 1201, the anti-circumvention provisions. – David Siegel May 16 '22 at 13:08
  • @RBarryYoung: "You copied it when you downloaded it" is not so clear. Technically/mechanically, the party you downloaded it from made a copy (their original on disk continued to exist while their packets containing the same information were sent over a network to you), possibly at your request but with them/their software being the one deciding to honor that request, while you just moved that copy they were sending to you to different storage medium (volatile network buffers to volatile RAM to disk). But whether a court agrees is another matter. – R.. GitHub STOP HELPING ICE May 16 '22 at 13:38
  • @DavidSiegel So then it's basically only the research provisions in 107 (fair use) and 1201 that apply? – towr May 16 '22 at 13:38
  • @R..GitHubSTOPHELPINGICE If they "honor the request" automatically, with no one curating the requests, I doubt that argument would hold any water. The Xerox decision removed liability for copyright violation from photocopier manufacturers, and the Sony Betamax decision was similar for VCRs. – Barmar May 16 '22 at 14:14
  • @Barmar: That's when the user is the one who brought in the work they want copied, which is a very different situation. Surely a warez site that "honors the request" automatically whenever anyone requests warez is infringement on the part of the site owner. The question is whether it's also infringement by the party making the request. – R.. GitHub STOP HELPING ICE May 16 '22 at 14:29
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    @R..GitHubSTOPHELPINGICE I think there are two infractions: one when copying to the warez site, the other when copying from it. The latter is somewhat analogous to purchasing stolen goods from a pawn shop. In both cases, the second act might be "innocent" if the actor doesn't know that the item was received illegally, but you still don't get to keep it. – Barmar May 16 '22 at 14:38
  • //This also covers the right to authorize preparation such works.// A practical difficulty with a rigid interpretation is that there are many situations where someone would want to evaluate the feasibility of producing and distributing/marketing a derivative work, without bothering the copyright holder if such evaluation would show that the effort would yield a result so poor as to not be worth distributing or marketing. Someone who invests efforts producing a derivative work without seeking permission first would run the risk of their work sitting in limbo until the original work lapses... – supercat May 16 '22 at 16:26
  • ...into the public domain, and thus before expending too much effort one might want to first try to determine whether they would be likely to be able to license their work on agreeable terms. On the other hand, sometimes one might want to prepare part of the work to show a copyright holder who would not expect to license any derivatives, in the hope of changing the copyright holder's mind (this is how Robert Rodriguez got permission to make Sin City: he spent a day shooting a scene, and the copyright holder liked it enough to grant him permission to make everything else). – supercat May 16 '22 at 16:29