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For example, GPL states (AFAIK) that if your software uses GPL licensed software, your software has to be made open-source. So, if you trick someone into using GPL software in their closed-source project without them realising, after lots of time and money invested you can make them disclose all of their work. That's pretty wicked. How far can you go?

Could I make something like this:

This software cannot be used in operating systems that use a Linux kernel or a kernel derived from Linux kernel.

Can you also include something like:

If the user of this software violates its license, all the belongings of the user are transferred to XYZ corporation.

Can you just change the assembly code (insert a few NOP instructions) so that no one is able to prove you're using infringing code?

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    FWIW I think you absolutely could make the license prohibit using the software on Linux. It is not unconscionable, it is legal, and it is (or could be made) sufficiently unambiguous to pass a "reasonable man" standard. The "give all your stuff" one is at least unconscionable and probably also too ambiguous, though legal. As to NO-OPs: if your app experience is otherwise identical, the copyright owner can likely sue and demand you produce your source code as part of discovery. Then you'd need to come up with your own version quick or get your checkbook out.
    – Patrick87
    Apr 20 '17 at 23:43
  • The moste easy way to make sure an app can't be run on Linux, you could include the program detecting the OS and nuking itself if it detects Linux KErnal...
    – Trish
    Oct 9 '20 at 12:30
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Your GPL example detracts from the question: see this recent answer. Setting aside GPL-specific conditions, the legal underpinning of software licensing is copyright law, whereby copying source code or an executable is only allowed with the permission of the copyright holder. There are two partial exceptions: "fair use" (generally not relevant to software), and a specific statutory permission to copy software in particular ways (making a backup, plus the act of executing software which requires copying from disk to memory). The latter permission only applies if you have legally acquired a copy of the software.

Which explains why nobody sells copies of software, they sell a license to use software (a subtle, legalistic distinction, which is essential to modern software qua business). The terms of the license say what you may and may not do: if you violate the terms, you do not have permission to copy the software, and are liable for copyright infringement. One limit on the terms is that they cannot take away a right that you already have by copyright law (e.g. "fair use" cannot be negated by a license term). Another limit is that the terms have to be consistent with contract law, hence the license cannot include a human centipede obligation – or, "all your stuff belong to us". When a contract is ambiguous, the ambiguity is construed against the writer, and that is also so with software licenses. Also like the situation with contracts, the terms have to be legal, that is, cannot deny some right or requirement encoded in law. There is a legal requirement that disclaimers have to be "prominent", and that holds of license terms.

As for "tricking" a person, that's not supposed to happen, with a proper license. If you put stuff out there and say nothing, nobody has been given permission to copy the item. You can make it available to a specific named person, but that is limited to one person, thus a license includes language allowing anyone to copy, but also requiring that the license be retained with any subsequent copies. Hence B copies from A, and sees the license; B may share with C (assuming a decent license) but must include that or substantially equivalent license; and so on. A problem arises if B redistributes without original license, substituting a bogus license. When C copies, that copying is not done with the permission (implied or express) of A, and C could be open to legal consequences. B is also clearly open to consequences, since re-distribution with the self-perpetuating license is a violation of the terms of A's condition grant of permission.

Ignorance of the true ownership of copyright is no excuse, and there is no general innocent-infringement exception to copyright law in the US. However, the part of copyright law that talks about remedies for infringement, 17 USC 504(b)(2) lessens the burden on the innocent infringer:

In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

Still, not zero.

I don't see how adding some NOPs would make it impossible to prove that you have a copy of someone else's IP. Perhaps it's not a trivial, but still quite possible.

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  • My understanding is that a license can restrict rights one already has in some cases. Specifically, Reverse Engineering has been held to be a form of fair use, but many software licenses purport to prohibit it, and i believe have been enforced. I don't have sources at hand on this, however. Also, fair use is more often important for software copyrights than you might think, in particular adapting example code has been held to be a fair use, as has imitation of an interface. Oct 13 at 18:28

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