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I work for a company that has purchased a software license for software that is needed to make our company run smoothly. We'd like to create a backup of the server in case of hardware failure, however the company we bought it from says that creating a copy of the software on the server is illegal and is instead asking for an insane amount of money for an additional license to create a backup on our own hardware.(Backing up the database for the program isn't an issue with them, just the software itself)

I understand that under U.S.C Title 17 § 117 that if we owned the software we'd be able to create a backup, however because we're just licensing it this might not apply.

In case of a hardware failure they would reinstall the software on another server and restore the database backup however this would be only doable during business hours and would take longer than us doing it ourselves.

Is it legal for them to deny us the ability to create our own backup and instead have to rely on them?

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    The code you cited does not exactly say that you have to "own" the software, but that you must be "the owner of a copy of a computer program." If you legally obtained a copy of the program, then that seems to make you the owner of a copy. At least, I'm not sure what else that phrase could mean. – Brandin Aug 24 '16 at 21:23
  • Is the license cost more or less than the salary of a procurement officer? – user662852 Aug 24 '16 at 23:00
  • U.S.C Title 17 § 117 refers to relief for copyright infringement. It does not cover relief to the copyright owner because of license or contractual infringement. StorageTek is an oft cited article on this subject (scholarship.law.berkeley.edu/cgi/…). Perhaps there is later case law or legislation that addresses licenses but, at least as of the StorageTek case, USC 17 does not grant a waiver to license issues; it addresses copyright infringement only. – Dave D Sep 24 '16 at 22:29
  • You would need to read the license agreement to see what exactly you license. I have seen all kinds of different counting methods. Per organization, per user, per computer or per CPU. All of that in both transferable and the non-transferable variants. I haven't seen "per logical copy" yet, but it is not completely unconceivable. – Philipp Sep 26 '16 at 8:00
  • @Philipp Per-CPU is quite common for business and enterprise software, and has the amusing side-effect that allows any number of copies to be made provided that the number in use at any one time doesn't exceed the number permitted by the license (unless of course the licenses are tied to specific CPU serial numbers). It also means that if your server has more CPU cores than the number in the license, the software will either automatically restrict itself to running on only the licensed number or (less likely) require manual limiting to the same effect in order to be used legally. – Micheal Johnson Nov 15 '17 at 17:54
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If you're in the U.S., then section 117 of the Copyright Act is likely what you're looking for. The U.S. Copyright Office says:

Under section 117, you or someone you authorize may make a copy of an original computer program if:

  • the new copy is being made for archival (i.e., backup) purposes only;
  • you are the legal owner of the copy; and
  • any copy made for archival purposes is either destroyed, or transferred with the original copy, once the original copy is sold, given away, or otherwise transferred.

Based on the information you provided, it sounds like you meet all three of these criteria.

They also note that your particular software's license agreement might include special conditions that affect your right to make a backup copy. Such a warning would only make sense if it was legally possible for the software distributor to make such a limitation, so I'm afraid the direct answer to your main question is "yes". It's definitely not the norm - at least in my experiences - but it is a possibility so you'll need to consult your program's license agreement.

There's also a possibility that the company misunderstood you and was thinking that you were running a backup server (in the sense of a redundant infrastructure) and not making an offline backup of your entire server. It's quite normal to require an additional license for the former case.

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  • Similar in Germany. The owner of the software cannot forbid a (legal) user to make a (single) copy that is needed in order to guarantee future use of that software. (AFAIK There's a gray zone whether the owner can forbid that backup copy if they guarantee hassle-free replacement of a damaged original software.) – cbeleites Oct 30 '17 at 23:28
  • The direct answer being yes or not depends on whether the software company can prohibit the Section 117 authorizations. They might be able to. – whatsisname Oct 31 '17 at 18:47
  • @whatshisname - The wording on the Copyright Office's website indicates that they can. They would have to use some sort of explicit language in the license agreement, though, so that's always the first place to look. – bta Oct 31 '17 at 22:32
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There are laws specifically for software that say that whatever the license is, if you legally have a copy of the software then you can make any copies that are legally needed to run the software (for example by loading the software into your computers memory), and you can make a backup copy. And that right cannot be taken away or negotiated away.

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    Can you be more specific about those laws (e.g. a citation)? – Nate Eldredge Aug 25 '16 at 8:27
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You can simply take an image of the server and be done with it. This should not violate most licensing agreements since you can only work with one "version" of the server at one time and likely no breach of licensing since most are for the protection against multiple instances being used with only one license.

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    Have you read the license agreement of the software in question? Without it you are just guessing what does and does not violate it. – Philipp Sep 26 '16 at 7:57

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