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Assuming someone purchases a piece of software, but due to an error, has to wait for an arbitrary amount of time to download the software, would it be a criminal act to download or use a cracked version of the software while waiting for the company to provide a method of downloading the software?

  • Other seemingly legitimate reasons someone who owns a license might want a cracked copy: You lost the media. Or you lost the license key. Or the company makes it so tedious to "activate" the software that you'd rather not jump through those hoops. – feetwet Jul 21 '16 at 1:24
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The starting point is whether you infringe copyright by downloading or using the cracked software.

The licence you purchase relates to a specific copy of the software.

The licence almost certainly does not say 'You can use any copy of this software.' It will usually say something like 'You may install this software', surrounded by other language that makes it clear that 'software' refers to a specific copy.

E.g. the Windows 7 EULA says 'you may install one copy of the software on one computer' and, in another place, says 'By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, return it to the retailer for a refund or credit.' Nothing in that licence allows you to download an infringing copy of Windows from elsewhere and apply your licence to that copy. In the case of Windows, you don't have a licence to run 'Windows', you have a licence to run a specific copy of Windows.

Therefore, even though you have purchased a licence, you would not have a licence for the cracked copy.

Running a computer program inherently requires you to make copies of it in memory. In the absence of a copyright licence, this is copyright infringement: MAI Systems Corp v. Peak Computer Inc (1993) 991 F.2d 511 (defendant, who was not a licensee in relation to software, ran software and in doing so created copies of the software in memory; the person was purportedly authorised by a licensee to do so, but the licensee did not have the right to so authorise the defendant).

In some jurisdictions, there is legislation to permit non-licensees to run software without infringing copyright, but these provisions (at least the ones in the US and Australia) don't apply to copies of the program which are themselves infringing copies. See 17 USC 117(a) and section 47B of the Copyright Act 1968 (Cth).

Now, supposing you do infringe copyright, the question of whether that is a criminal act will depend on the jurisdiction and the other facts of the case. In Australia, downloading or using software is almost never a criminal act (offences under the Copyright Act require trade in infringing copies or commercial scale, etc). In the US, infringing copyright for commercial gain (e.g. if the software is for use in a business) or of particularly expensive software might be criminal under the No Electronic Theft Act.

Furthermore, downloading the 'cracked' software may make one complicit in the distributor's offending, specifically by way of 'counselling and procuring' or 'conspiracy'. The distributor's offending may include the kind of commercial copyright infringement that is criminalised.

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I would think the most important aspect surrounding the question revolves around the DL'ed software. Simply obtaining the exact version of software you initially bought would seem almost impossible. I'd assume most cracked copies would be floating around the internet, which if downloaded, would negate any validity. For example- if I bought Winblows 7, installed it, put the physical copy near the desktop and then, for some reason, my computer exploded, also melting the physical copy. I'd then download the first pirated copy I found (not on the same computer, obviously). This newly downloaded copy wouldn't be the same untouched copy I obtained legally. -its like I bought a pair of shoes, lost the receipt when trying to return them and while walking out, stuffed a different style down my pantlegs and walked out.

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  • (1) I don't follow the shoe analogy. (2) Please cite some authority for whatever it is you are talking about. – Patrick Conheady Jul 23 '16 at 11:42
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It might depend on jurisdiction, but in general , while it may be moral, it is still illegal (unless you get permission to do this - which I assume you don't have) from the company who owns the rights.

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    And it is illegal because...? (CFAA in the U.S.? But the OP isn't the one who cracked it. They're just looking for a convenient way to use a product they have licensed.) – feetwet Jul 21 '16 at 1:27
  • The OP is making a copy of software that isn't his. It's like handling stolen goods. Doesn't matter that you didn't steal it. If there was a "crack" involved then the DMCA fully hits you, whether you cracked the software or whether you are just using cracked software. You circumvented DRM by downloading a cracked version. $2,500 per copy in one court case that I know about. – gnasher729 Jul 21 '16 at 15:05
  • Why was my answer downvoted? – davidgo Jul 21 '16 at 19:47
  • I didn't downvote this but I was tempted because of the lack of legal authority cited. – Patrick Conheady Jul 23 '16 at 11:41

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