• Is it illegal to produce and sell malware?
    • If no, is there any data I need to collect on the customers?
  • Is it illegal to produce and sell Crypters(programs that hide other programs from antivirus)?
    • If no, is there any data I need to collect on the customers?

The exact laws will vary by region and country, but the laws will range anywhere between illegal and almost illegal. If you want to operate as legal as possible then you will have to disclose to the buyer that the software is malware or a crypter and you should require for the buyer to sign an agreement to only use the software for legal and educational purposes. Hiding the disclosure in a long Terms of Service agreement will likely not be sufficient. You will have to explicitly advertise that the software is malware and a crypter and that you are looking for reputable tech firms to buy your software in order to improve their software.

If you sell software without disclosing to the customer that the software contains malware or a crypter then you are exposing yourself to a lawsuit for products liability, invasion of privacy, fraud and misrepresentation, the cost of damages, and possibly criminal liability.

  • Okay I found this question: law.stackexchange.com/questions/536/… The answer says: What you publish can't be “directed to inciting or producing imminent lawless action.” So, for example, I present my customer with the message: "We don't give a dime, what you do with the goods we are selling you". Wouldnt that rule out any incitement for anything, because I officially state, that I dont care? Or are there completely different rules applied, when there is a customer<->merchant relationship? Iam a lawnoob – hjbvmkbjnmb Sep 5 '15 at 1:22
  • If you knowingly sell malware to someone who uses it for an illegal purpose then you may be liable for secondary and/or vicarious liability. The same reason you cannot sell someone a weapon knowing they intend to use it for illegal purposes is the same reason you cannot sell malware knowing a person intends to use it illegally. The seller is required to take reasonable due diligence to ensure their product is safe and not misused. Read password recovery software disclaimers and the E.U.s new online privacy laws to get ideas. ec.europa.eu/digital-agenda/en/online-privacy – Justin Waters Sep 5 '15 at 2:03
  • Could you direct me to some resources to find out, what "knowingly" exactly means? Or do you have more thoughts on that? I mean if I just say I dont care what you do with it. It is your responsibility. You just give me money and I give you some ones and zeros. Do I know anything about the intent of the buyer? Thanks! – hjbvmkbjnmb Sep 5 '15 at 2:35
  • Knowingly means the person "knows, or should know, that the results of his conduct are reasonably certain to occur." Look up "mens rea" it means guilty mind. The first few pages of Opperman v. PATH, INC., Dist. Court, ND California 2014. 15 Apple developers and Apple get sued for allegedly distributing malware. 8 U.S. Code § 1030 - Fraud and related activity in connection with computers scholar.google.com/… justice.gov/sites/default/files/criminal-ccips/legacy/2015/01/… – Justin Waters Sep 5 '15 at 3:28
  • Okay, I think this question comes down to what I need to do to show that I took "reasonable due diligence to ensure that the product is not misused" But basically with this kind of software there is no way you could ever ensure, that it is not misused and there are companys that sell this kind of software and/or open source it. With financial services there is this "Know-Your-Customer"-Thing. I wonder if there is something similar with this. Thanks for your help so far. – hjbvmkbjnmb Sep 6 '15 at 2:06

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