1

For those not familiar, VirusTotal is a Google-owned site that allows anyone to upload any binary so it can be scanned by numerous anti-virus engines. Many third-party products also integrate the VirusTotal API so that binaries are automatically uploaded based on system scans. The way VirusTotal makes money is that they charge subscription fees so that other users can download the binaries that were uploaded. So my question is, doesn't this violate the copyright of the binary authors?

Now, obviously malware authors are not going to claim ownership of their binaries but a lot of other non-malicious binaries get uploaded to VirusTotal. And because anti-virus engines are not perfect they will mark legitimate software as malware. When a binary is marked as malware, according to VirusTotal, it will send that sample to other third parties as part of a sharing program.

In summary:

  • VirusTotal allows anyone to upload any binary regardless of the EULA of the software.
  • VirusTotal facilitates sharing of the binary again regardless of the EULA.
  • VirusTotal profits off the uploaded binaries by charging a subscription fee.
  • VirusTotal provides no recourse available when legitimate software is marked as malware, only to contact each individual anti-virus company to report the false positive.

Putting aside the benefits of helping to identify malware, it seems to me that VirusTotal is in violation of copyright laws.

5

VirusTotal is no different than many internet companies which operate with user-supplied content (i.e. Facebook, Youtube, etc.), and they are no different in the way they protect themselves with a TOS that outlines all aspects of their use of any material contributed or licensed or sold.

Their Terms of Service states that users must own the copyright for what they upload and give VirusTotal a license to use it and relicense it and profit from it. VirusTotal uses the "safe harbor" clause of the DMCA to limit their liability for illegal uploads and provide a recourse for users who claim a copyright violation of uploads. And VirusTotal clearly seek to limit their liability for their own service in the case of false positives by standard clauses that claim they "do not warrant or guarantee that the services are accurate, reliable or correct."

They're really no different than many internet companies; read the Terms of Service. It's a legally binding contract for all users, though some jurisdictions may limit some aspects of it.

2
  • Is this Section 230? What I don't understand is how their ToS overrides the copyright of software developers and they can suddenly do whatever and profit however they want with it. When a binary is uploaded there is not even a question of "are you the owner of this binary?" so they don't even try to verify and you don't even have to have an account to upload. I fail to see how any of this is allowed to be binding. – legalstx Mar 19 at 3:15
  • 1
    What happens with Facebook or Instagram or YouTube? All kinds of copyrighted material is uploaded illegally by people who don't own it, and the services are not liable due to their TOS and the fact that they offer DMCA takedowns. This is not Section 230; that's "free speech" and objectionable material; 230 that does not shield a service from liability for copyright infringement, the DMCA covers that. – BlueDogRanch Mar 19 at 4:07

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