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Is it illegal if you create a backup of an HDD that has copyrighted software installed on it?

This could be anything from legally purchased games and or expensive popular graphics/video editing programs, just as an example.

Is this backup an illegal copy of the original HDD?

  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Nov 16 '17 at 18:47
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You're allowed to make backups of copyrighted software, as long as you are authorized to use the software, the backups are not distributed, and they are destroyed when/if you are no longer authorized to use the software.

17 USC §117(a):

(a) Making of Additional Copy or Adaptation by Owner of Copy. -- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) ...(not very helpful)...or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

The law is usually used to justify copies of the installation media, but it would be unconscionable to cut your rights off there and make backups illegal for machines containing copyrighted software. After all, with such an interpretation, no Windows machine could be backed up since Windows is copyrighted.

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    It would be legal even without such a law. Making backups is part of the ordinary use of the software. Ordinary use by people who lawfully possess a work is never restricted by copyright in the United States. – David Schwartz Nov 15 '17 at 0:10
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    Making backups wasn't part of "ordinary use" back when the law was written. Most software was designed to run directly off a floppy disk (or tape) rather than being installed, hard drives wouldn't really be a thing for a few more years yet, and copy protection was everywhere. Without the law, we might never have come to the point where it's just something you expect to be able to do. – cHao Nov 15 '17 at 0:23
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    @cHao: "Most software was designed to run directly off a floppy disk (or tape) rather than being installed" - and making backup copies of those floppy disks arguably was part of "ordinary use", wasn't it? "copy protection was everywhere" - huh? Could you provide an example for that, please? The only "copy protection" from the floppy era I know was indeed a protection against running the software without being authorized to do so - e.g. by having to match some kind of a (printed) key that couldn't easily be duplicated, in contrast to the actual software. – O. R. Mapper Nov 15 '17 at 4:41
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    @O.R.Mapper Here's an overview of floppy disk copy protection techniques. Wikipedia has some information on the subject too, and there's a fascinating in-depth look at some of the more creative anti-copy systems here. – Pont Nov 15 '17 at 8:27
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    @MichealJohnson: You have rights too. The law says you can make backups. Plural. The EULA can say whatever it wants, but a piece of paper written by some company -- especially a piece of paper you don't even get to see til you've given them money! -- doesn't take your rights away just because it says it does. If the company actually tried to enforce a "one backup" clause, and particularly if it tried to forbid normal backups of the system where the software's installed, the clause would almost certainly be deemed unconscionable and thus unenforceable. – cHao Nov 15 '17 at 17:45
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Copyright law (17 USC 117) specifically allows this:

it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program

if you are the owner of a copy of the computer program, provided:

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

There seems to be a bit of a meme out there that you can make only one backup copy (here, here, here) but the plain language of the statute does not support that interpretation, and "all archival copies are destroyed in the event..." would be incomprehensible if you were only allowed to make a single backup.

Only software enjoys this additional permission to archive. The distinction between "program" and "data" is not entirely clear, but the definition of computer program ...

a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result

can be reasonably interpreted to include datafiles that are read in order to make sounds or display images. (See the US Copyright office FAQ regarding non-program materials and backups).

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    The meme is probably due to EULAs trying to over-assert the copyright holder's rights. I've seen several that say "one backup copy". – cHao Nov 14 '17 at 21:09
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    @cHao, the "archival copies" language dates from 1980. Prior to that, you couldn't make a backup unless the EULA explicitly permitted it. The EULAs from that era that I've seen generally explicitly state "one copy for backup". – Mark Nov 14 '17 at 22:22
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    +1 Only software has permission to be archived? What about data? That can't by archived? I'm sorry, could you explain with a source. – LateralTerminal Nov 14 '17 at 22:31
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    @LateralTerminal: The law allowing backups specifically applies to "computer programs". The extent to which data is a computer program, that's the extent to which the law applies. But basically no one sues for copyright infringement over backups. I like to think it's because they're afraid of just how far the court will go in deciding that copying (but not distributing) digital media constitutes fair use. – cHao Nov 15 '17 at 15:37
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    @LateralTerminal - "So, if I'm understanding that an MP3/MP4 is not a program so it can not be backed up?" ... unless it constitutes fair use. But as a noncommercial use of a published product with effectively zero effect on the potential market of the original, and despite being a complete copy, my own unqualified guess is that it would be fair use. – Jules Nov 15 '17 at 16:40

protected by feetwet Nov 16 '17 at 18:48

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