Who is held accountable in case of violation of JSON license&#39;s specific &#39;no evil&#39; clause - the end user, the distro, or both? The JSON license, as well as the jslint (and the 'jshint' derivative) license, is an otherwise unmodified version of the MIT License except for one peculiar clause which reads: The Software shall be used for Good, not Evil. As a result, some software developers and distributors take the (IMO) unfortunate route of not using, or not distributing, the software components licensed under these terms (that is, except for those who managed to get an exception clause added to them). One such example is Debian. In a open issue to the jshint repository, some users voice their complain that the atypical clause prevents Debian from packaging jshint in their official repositories. What I want to ask is: say the Debian Project were to distribute jshint in their official repositories. Assume this act is qualifiable as 'good' (not evil). No violation of the license so far, I suppose. Now consider the case of a Debian user who uses his Debian computer to practice evil (for instance, extortion, terrorism, you name it). Who would be liable for violation of the license terms? The Debian user, who performed the wrongdoing; the Debian Project, who distributed the software; or both? In other words: if a court were to take the clause at face value and enforce it, would the user be the sole defendant, or would the Debian Project also? The clause states "The Software shall be used for Good, not Evil" - but I assume the distribution of the software by the Debian Project qualifies as use (right?). In that context, is the Debian Project liable for whatever evil their users might be willing to execute by means of a computer running the Debian OS? Or, I suppose, the same question in other words would be: Is it a risk for the Debian Project to distribute jshint in their official repos?
That “shall be used for Good, not Evil” clause is a moral category, not a legal category. From a legal perspective, it is likely meaningless and/or unenforceable. Neither Debian nor users of that software should expect any legal risk for using or distributing the software. However, software under that license will never make it into Debian because it violates the Debian Free Software Guidelines. The DFSG is not a contract in the legal sense, but it forms part of the Debian social contract with its users. It is not in the interest of the Debian project to include software unless the software is free to use for any purpose. While the JSON license's usage restriction is likely meaningless in practice, it clearly tries do do exactly what the DFSG wants to prevent. In the Open Source community, there is a broad consensus against the JSON license. The DFSG, slightly edited, was adopted as the Open Source Definition. Consequently, the JSON license also fails to be an Open Source license. The Free Software Foundation also looked at the license, and concluded: “This is a restriction on usage and thus conflicts with freedom 0. The restriction might be unenforcible, but we cannot presume that. Thus, the license is nonfree.”
Encoding is making an unlicensed derivate or copy Let's say instead of a video file, we take a short story. For the sake of argument, let's take For sale: baby shoes, never worn. We can apply the Cesar-7 Chiffre and get Mvy zhsl: ihif zovlz, ulcly dvyu. Or we use the NVA's TAPIR pattern: 56644 83690 62182 90838 15005 07883 69596 41698 29183 81317 41483 76644 38289 That is obviously nonsense. But all these patterns are at least derivative of the original work. But in fact, they full encode the message, only in a different format, and are reversible. This means we don't just make a derivate, we made a copy, which can be read with the proper means. It is the sole right of the author or rightsholder to license making copies, no matter how they are encoded. Or to rephrase: If it is reversible, it is a copy. If it is not reversible, it is a derivative. Neither is allowed. Subquestions who is liable? The one encoding the file committed copyright infringement for making an unlicensed copy. Period. No way around. The one downloading the file committed copyright infringement by copying the unlicensed copy. No matter if they knew what it was or decoded it, they made a copy of an (encoded) unlicensed copy. Deleting the file btw does not make the copyright infringement go away. can that person make a legitimate argument in court that he just randomly generated the &quot;abstract art&quot; [...] ? That would be perjury. They chucked a whole work into an algorithm. Saying anything else but &quot;I chucked the work into the algorithm&quot; is perjury. Which incidentally can be easily proven if the algorithm is reversible - it will prove the input. is the person who wrote the program [...] make the argument that the program isn't meant to specifically decode copyright material They can, but they are not even on the hook for copyright infringement in the first place. They provide a tool with legitimate uses, such as transmitting messages in a secure way. Encoded files inside other images are for example used by journalists to get files out of oppressive regimes. The liability araises only at the user who uses it illegally. But if so, would it then make a difference if the offline program decodes the file into system RAM only, and not to a file on disk? No. Think about an ISO file. ISO files are 1:1 copies of how a CD is written. They can be burned 1:1 onto a CD without any extra preparation, which is their legitimate use: be easy to distribute and verify copies of for example installation files. ISO files can also be mounted in a virtual CD drive, which emulates a CD drive. If you legitimately got the Windows ISO from Microsoft (or a licensed retailer) directly, you can mount it or burn it, or use it for all legitimate purposes. However, downloading the ISO for a game doesn't change that you made an illegal copy of the game, no matter that you need to mount or burn the ISO to actually access it.
The words "proprietary format" are important. Are you sure the format is proprietary? If it is, then it's likely protected in which case they might have grounds to sue (but that does not mean they would definetly win). If the format is not proprietary, and so long as you don't share data which is proprietary then I believe you fine. I'm not a lawyer - but I cite GIF files as an example. They were still protected by the US and some other countries until at least the late 90s and there were various threats to open source linux companies who shared code that used the file format. I'm not aware of anything other than threats and never heard of any company being sued, let alone winning or losing. Another example that comes to mind is the RedHat ISO format. My understanding is RedHat could not stop anyone from sharing open source, but they could prevent folks from sharing the format they assembled and shared the open source. Again, I am not sure if it was ever tested in any court of law anywhere.
Company B has created a derived work from company A's copyright-protected work, so yes, B has infringed on A's copyright. It might be difficult for A to prove it, however, so B might get away with it, but it's still infringement. On the other hand, if B creates software that behaves like A's through reverse engineering, that is, by examining the program's function without examining its code, then they will not have infringed the copyright in the code.
You cannot do this through any established public license that I know of, but you could write your own. The model would be any educational use or non-commercial use license, such as CC NC licenses. The main challenge is defining the excluded classes of usage. That is why you should engage an attorney to draft this for you. I don't think there is any point in adding a $5M penalty clause. You offer a separate paid license for individuals who do not want to comply with the particular terms of your license, and set the fee to whatever you want. Saying that you're gonna fine violators is a bad idea because penalty clauses are illegal. Instead, the standard approach is a liquidated damages clause, where you state what a reasonable estimate of your damages would be. In the case of software that is available for purchase, illegal copying of the software obviously results at least in the cost of the software qua lost revenue as damages. Plus shipping and handling.
The origin of a lawsuit will not be a license, but copyright law. Licenses are exemptions from copyright law enforcement. The original author holds the copyright. That person did offer a license O to the third party, but that third party did not take up that offer. Hence, there is a copyright violation, and a cause for a lawsuit. It is up to the original author what might be demanded there, but the usual demand is such suits is for damages. However, it is common practice to settle the case amicably outside the courts by agreeing to the original license O, although this may come with undisclosed extra terms. The problem with a lawsuit is that enforcement of the original license offer O is hard, because copyright law generally does not cover such licensing. The license terms L are mostly irrelevant as that person is not a copyright owner so there is nothing to be licensed.
First of all derivative works are not exactly "illegal". They are fully legal if the owner of the copyright in the original work has given permission. If no permission has been given, they may be copyright infringements. But they may fall under an exception to copyright. Under US law, the most common exception is "fair use". See this question and answer for more on fair use. But particularly relevant in this case is that a parody is usually a fair use, although as in every fair-use decision, there is pretty much no clear-cut, hard&amp;fast rule on what is and is not fair use. In the UK and much of the EU (or maybe all of it, I am not sure) there is a somewhat similar concept known as "fair dealing". It is also an exception to copyright. So it is possible that such works fall under fair use, fair dealing, or another exception to copyright, or that the rights-holder has given permission. Secondly, copyright infringement is a tort, not a crime, under most circumstances. It is enforced when, and only when, a copyright-holder chooses to take action, sending a take-down notice or copyright complaint, of filing suit for infringement. Some rights-holders choose as a matter of policy not to take such actions, thinking that such derivative works actually benefit them. That is their choice to make. Some rights-holders don't have the time or money to track down and take action against most infringements, and will only act if they think the derivative work will in some way cost them a lot of money or harm their reputation. Some rights-holders may just not have heard, yet, of specific possible infringing derivative works. As for Acta2, it has not yet been approved, the Wikipedia article linked in the questions says: In order for the text of the directive to become law in the EU, it must be approved by the European Council on 9 April 2019 The article also mentions significant continuing opposition. If it is approved, it is not clear, to me at least, how it will affect sites hosting such content, nor how it will interact with the copyright law of individual EU nations. If approved, it will no doubt take some time before enforcement is widespread. And of course it will only apply when EU law applies. If both site and author are outside the EU -- say if both are from the US -- it seems that it could not apply.
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 &quot;software cracking&quot; is meant creating a modified version of the software that operates differently, for example by-passes authentication, or allows unlimited &quot;lives&quot;, 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 &quot;cracked&quot; 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 united-states 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.