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This question came up when I was reading this recent thread:

Is it illegal to infringe copyright if your boss or your client ordered you to do it?

in which that the poster was asking about a scenario where that someone was hired to develop a piece of software as a freelancer, and their hirer told them they needed to install some software to complete the job and, moreover, that the way they were to get this software was to download it illegally from a pirate site. And it was mentioned in the top-voted answer here how this could be considered as actually a crime - not just a civil infringement but an outright crime since it's copying being done for commercial gain.

The question I'd have, then, is that under this, what happens if we propose the following modification, because it didn't seem to come up and yet also seems worth considering as a separate question in its own right: suppose that the freelance developer has already signed a contract to develop, and thus are now legally bound to deliver the product on time. Suppose that also, the contract explicitly states that they are not going to have to pay for any additional software that will be required in the course of construction. Now, the hirer, during the course of development, asks the person to download a necessary component illegally. The developer is aware of this law and points out to them, as mentioned in the answers, that to do so is to commit a crime. The hirer responds with "I don't want to pay for it, here you go, now download it" and also that sie will not accept software developed with another tool. You tell them again, point blank, it's a crime. They repeat the demand. Then, in response, with no further warning, not feeling up to doing the job anymore, you, the developer, simply walk away and abscond from the contract of your own volition and agency as a free human being, never delivering anything and just letting it go.

The question is:

  • how serious is what you have done, legally? If the contractor tries to take you to court for a breach and you argue you didn't do nuffin because it said explicitly that you would not incur any fees and the hirer was demanding a criminal act on your part, would you be able to be absolved of any liability? If you are not, what sort of consequences as in damages could you expect?

  • from a moral point of view, since I like to have both, to how rightfully an extent should this or not prejudice your reputation many years in the future by other assessing your trust? (For me, if I heard they were the developer in this situation in this context when considering to hire them and heard about their past here, I'd blow it off and take the person under my wing.)

ADD: Was going to put it but forgot - the relevant jurisdictions are the same as in the original question: the United States and the European Union.

  • In what jurisdiction would this hypothetically take place? – David Siegel Feb 17 at 1:13
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A contract that requires illegality is void

However, it is not clear that this is such a contract - it depends on what each party is actually obliged to do. The contract can be delivered by one of the parties buying the third-party software or one of the parties developing something that does the same thing.

It is clear that the contractor is not obliged to pay for 3rd party software so, what happens if the principal says “Neither am I. Anyway, I’m not requiring you to buy it, just make sure you deliver on time.”

The contractor is wedged - if they don’t deliver on time they get sued and they have to hope the court agrees that the delay is the principal’s fault. Or they buy the third-party software (or develop their own) and bill the principal for it and sue when the principal doesn’t pay. Or they break the law and hope they don’t get caught.

Happens all the time.

  • The point here is that the hirer has said in the contract that the developer should not have to pay any fees for software or other tools and moreover, that when it comes to this part, the hirer is insistent on that this particular software be used, and that it be procured through this illegal method even when they are informed that they are thus asking the developer to commit a crime, and that the contract said that they would not put any obligation on the developer to pay for software. If the only legal option then is to pay the software, that would seem to create a conflict. – The_Sympathizer Feb 17 at 3:36
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    It may be that the appropriate treatment is not "requiring illegality" but "an impossible commitment". If I sign a contract that I'll get you a fancy car for $500 by tomorrow, then the contract still doesn't necessarily require any illegality, just a commitment that I'm unable to meet without stealing that car; just as if I had promised to build you a house for $500 by tomorrow, where even illegality doesn't help me. – Peteris Feb 17 at 3:57
  • @Peteris what you describe isn’t impossible- it’s just hard. That would be a binding contract. – Dale M Jun 7 at 21:26
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It appears that the contract as signed is legal and enforceable, but the attempt to require the use of this particular software (since it requires either a breach of another term or illegality) can be treated as a repudiation, allowing the contractor to walk away, as long as he accepts the repudiation in writing.

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