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I would like to know whether software cracking is considered illegal broadly (in the way that drugs are, for example, broadly illegal in many western countries), or is it a more complex question. I am most interested in legal state in western countries.

For example, suppose I'm cracking software (games) as a hobby. but I never actually "consume" these games - I never play them after they're successfully cracked. Furthermore, I never distribute the modified software (or the patch), and keep everything archived (suppose its also encrypted), just as a learning diary.

Suppose then, that an officer gets access to my storage (for example, I cross the border and officers want to clone my storage space), and realizes its packed with projects in progress and a suspicious encrypted archive. Obviously, not wanting to be detained forever, I provide the secret key and it shows that the archive is full of successful cracks.

Would I immediately be criminally charged just for posession - or would the prosecutors have to prove ill intent first?

The reason for this question arises from my understanding, that software tampering is a part of the "copyright" law; therefore, I'd presume that as long as I do not make a copy - all changes of the software that executes locally on my hardware, should be perfectly legal?

(Sorry on improper legal lingo - not my profession.)

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    I think this will greatly differ between countries. However, if you don't distribute your "cracked" software nor sell it somehow, who's going to sue you? And for what? Copyright is (mostly) civil right, so a lawsuit would only be about money they lost.
    – PMF
    May 15 at 18:59
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    @PMF I second this being jurisdiction dependent, but the question asks about illegality, not probability of a lawsuit.
    – sharur
    May 15 at 19:22
  • Yes, the question explicitly asks about criminal sanctions, and you can commit civil wrongs without being sued, so assessing the (un)likelihood of a lawsuit doesn't seem to help address the question.
    – bdb484
    May 15 at 19:22
  • I didn't post it as an answer just because of this. I only wanted to point out that if one doesn't make money from it, the possibility of an actual legal impact is small, which is also pointed out in the answer.
    – PMF
    May 16 at 7:02
  • This is highly dependent on the jurisdiction. For example, in Europe you can resell your only copy because you own it. You can also make a handful of copies for yourself and your family of copyrighted material. I'm not sure what European law says about cracking privately but I'd bet that there are jurisdictions that don't mind. May 16 at 9:35

1 Answer 1

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It is not correct to say that

drugs are, for example, broadly illegal in many western countries

Some specific drugs, or specific categories of drugs, are illegal in certain circumstances, by specific statutes. Which ones vary by jurisdiction. So the analogy breaks down.

As for the main question, if by "software cracking" is meant creating a modified version of the software that operates differently, for example by-passes authentication, or allows unlimited "lives", that would most probably be creatign a derivative work of the software.

Creating a derivative work, even if it is never distributed, is copyright infringement under US law: 17 USC 106 (2) lists as one of the exclusive rights of the copyright holder the right

to prepare derivative works based upon the copyrighted work;

This also covers the right to authorize preparation such works. So merely creating a "cracked" version of the software is technically infringement. However, infringement (of this sort) is not a crime, and no border officer or other government official will care about it in the slightest. It is up to the copyright owner to take legal action, normally by filing suit. If the modified software is never distributed nor advertised, it seems unlikely that the owner will ever even learn of it, and less likely that the owner will sue if s/he does learn of it. Damages in such a case, if the owner brought one, would probably be small, indeed not enough to make it worth the owner's time and trouble.

If the cracker starts with an instance of the unmodified original software, and edits it in place, never making a new copy, s/he is still preparing a derivative work, and (unless permission was obtained, or the work constitutes a fair use) it is still, copyright infringement. The right to make copies and the right to prepare derivative works are legally separate, even though they are often used together. –

If the modified software were posted online, the owner could send a takedown notice to the hosting site. If it were being sold, then a suit would be more likely. If what the cracker creates is not a modified version of the software, but instructions for modifying it, it is less clear that that would even be infringement. If the instructions are for evading an access control mechanism, that might be unlawful under 17 USC 1201 the anti-circumvention provisions of the DMCA. But again it would be up to the owner to take legal action, the government will not care until and unless the owner takes action.

Also relevant is 17 USC 103 which provides that:

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

Thus the lawful creator of a derivative work (with permission or a valid claim of fair use) obtains a nerw copyright on the derivative work, but it protects only the new and original parts of that work

The above answer is specific to the but on this point the laws of other North American and European countries are, i believe, similar, as is the Berne Copyright Convention, at least on the matter of derivative works.

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    @bdb484 Ever if cracking is done on a local disk, i probably starts by making a copy to be modified. But that doesn't matter. If I take an original painting (by someone else), and paint in an additional object, or otherwise change it, I have created a derivative work e3ven though I never made a copy. The right to make copies and the right to prepare derivative works are legally separate, even though they are often used together. May 15 at 21:04
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    @bdb484 I have modified my answer to address editing in place, and be more explicit about derivative works May 15 at 22:02
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    I'm not persuaded on the derivative-work argument. Mustn't a derivative work be its own original piece of authorship? The cracking program would probably satisfy that definition, but a cracked version of Photoshop is, I think, going to essentially indistinguishable to the user from a licensed version. If all the cracking program is doing is deleting code that checks for a license before launching, is that really an original piece of authorship? If not, it seems the software creator would have to pursue a contract claim rather than a copyright claim.
    – bdb484
    May 15 at 22:44
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    Thank you so much for the exhaustive answer, and your time!
    – John Z.
    May 16 at 0:15
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    @bdb484 You copied it when you downloaded it, then you modified that copy, even if you did not as David Siegel suggests take the usual and sensible step of making an extra copy for edit/recovery purposes, and even if you did not, as most sensible professionals and hobbyists do, backup(*) your work at any point. (* Backups are of course, copies). May 16 at 10:56

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