# Illegality of breaking Licensing Agreements **URL:** \ **Category:** Factual Questions\ **Created:** [April 20, 2007, 1:10am UTC](https://boards.straightdope.com/t/illegality-of-breaking-licensing-agreements/400877 "2007-04-20T01:10:23Z")\ **Posts on this page:** 12\ **Page:** 1
**Author:** ![Merkwurdigliebe](https://avatars.discourse-cdn.com/v4/letter/m/74df32/32.png) [@Merkwurdigliebe](https://boards.straightdope.com/u/Merkwurdigliebe)\ **Post date:** [April 20, 2007, 1:10am UTC](https://boards.straightdope.com/t/illegality-of-breaking-licensing-agreements/400877/1 "2007-04-20T01:10:23Z")
The thread on copying DVDs got me thinking, and I think it has been discussed a bit here, but I have a question about this. Copyright law, as far as I know is a different story. You can’t copy music because it’s illegal. But what about, for example, Microsoft’s EULA. Is it actually illegal to do so? You couldn’t go to criminal court for this, right? The only thing you could do would be held in breach of contract, which is a civil thing, right? The reason I wanted to know is because the SDMB, as a policy doesn’t allow advice on how to do illegal things, but breaking a contract isn’t illegal, is it? Please inform me on exactly what the story is here. I just remember threads where people tread lightly on the subject becuase they think it is illegal, but I was never so sure. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [April 20, 2007, 1:18am UTC](https://boards.straightdope.com/t/illegality-of-breaking-licensing-agreements/400877/2 "2007-04-20T01:18:16Z")
There is some debate as to how enforceable a EULA is, but I don’t think there have been any test cases. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [April 20, 2007, 7:22am UTC](https://boards.straightdope.com/t/illegality-of-breaking-licensing-agreements/400877/3 "2007-04-20T07:22:24Z")
See _[ProCD, Inc. v. Zeidenberg](http://www.law.emory.edu/7circuit/june96/96-1139.html)_, 86 F.3d 1447 (C.A.7 Wis.), 1996. United States Court of Appeals, Seventh Circuit, says: > [@](#): > > Shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are unconscionable). But that ruling applies only to the states in the Seventh Circuit: Illinois, Indiana, and Wisconsin. Kenneth W. Grierson is the author of the article “Enforceability of ‘Clickwrap’ or ‘Shrinkwrap’ Agreements Common in Computer Software, Hardware, and Internet Transactions” in 106 A.L.R.5th 309: > [@](#): > > In computer software, hardware, and Internet transactions—especially mass market consumer transactions–sellers typically use terms and conditions contained in either “shrinkwrap” (terms contained on or inside the software box) or “clickwrap” (terms that appear on the computer screen when the software user attempts to install the software). Whether such terms, which are often not available for review until after payment, are enforceable against the purchaser has been the subject of debate in the courts. Some courts have found that terms contained in shrinkwrap or clickwrap agreements are enforceable, holding that the end user has assented to such terms by the installation or use of the software. For example, in _I.Lan Systems, Inc. v. Netscout Service Level Corp._, 183 F. Supp. 2d 328, 46 U.C.C. Rep. Serv. 2d 287, 106 A.L.R.5th 743 (D. Mass. 2002) (applying Massachusetts law), the court held that a clickwrap agreement was enforceable, finding that the software purchaser had assented to the terms of the agreement by installing and using the software. Other courts, however, have refused to enforce such shrinkwrap or clickwrap agreements, considering them to be counteroffers or proposals for additional terms. Stephen J. Sand, J.D., “Validity, construction, and application of computer software licensing agreements,” 38 A.L.R.5th 1 > [@](#): > > Several courts have recognized or apparently recognized the rule that a breach of a computer software license, which results in a use exceeding the scope of the license, constitutes or could constitute copyright infringement, through either direct or contributory infringement theories. ---
**Author:** ![from\_a\_to\_z](https://avatars.discourse-cdn.com/v4/letter/f/5fc32e/32.png) [@from\_a\_to\_z](https://boards.straightdope.com/u/from_a_to_z)\ **Post date:** [April 20, 2007, 7:28am UTC](https://boards.straightdope.com/t/illegality-of-breaking-licensing-agreements/400877/4 "2007-04-20T07:28:14Z")
[Dangerous Terms, A User’s Guide to EULAs](http://www.eff.org/wp/eula.php), a 2005 article by [Annalee Newitz](http://www.techsploitation.com/about/), tells me that some license agreements are unenforceable. At least in the US. What do the Danish lawyers say? Do they ask you for money up front? One of many interesting comments about Microsoft in Newitz’s article: “Note that by clicking through the EULA for Windows XP, you are also agreeing to let Microsoft download software onto your computer on behalf of third parties, identified only as the ‘Secure Content Owners.’” Class action, and/or many years and resources, could help you in your test case. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [April 20, 2007, 12:44pm UTC](https://boards.straightdope.com/t/illegality-of-breaking-licensing-agreements/400877/5 "2007-04-20T12:44:34Z")
Does anyone have a citation to an actual, published decision of a court, refusing to hold a customer to the terms of an EULA? Then, let’s go the next step, which the OP actually was asking about, which is not, are they enforceable, but rather, is violation of them a violation of, say, copyright law, such that you are subject to criminal sanction? Does anyone have a case on point for that question? ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [April 20, 2007, 3:58pm UTC](https://boards.straightdope.com/t/illegality-of-breaking-licensing-agreements/400877/6 "2007-04-20T15:58:02Z")
Stephen J. Sand writes, _op. cit._: > [@](#): > > In _Tingley Sys. v Norse Sys._ (1995, CA2 Conn) 49 F3d 93, the court apparently recognized the rule that use of the licensed program exceeding the scope of the computer software license constituted copyright infringement.… > > The court in _MacLean Assoc., Inc. v Wm. M. Mercer-Meidinger-Hansen, Inc._ (1991, CA3 Pa) 952 F2d 769, 21 USPQ2d 1345, also recognized the rule that, because a nonexclusive license does not amount to a transfer of ownership, the licensor of computer software can sue for copyright infringement if the licensee’s use exceeds the scope of the nonexclusive license.… > > Recognizing the rule that a licensee infringes the owner’s copyright when the licensee’s use of the software exceeds the scope of the computer software license, the court in _Advanced Computer Servs. v MAI Sys. Corp._ (1994, ED Va) 845 F Supp 356, 30 USPQ2d 1443, 1994-1 CCH Trade Cases ¶70589, held that the plaintiffs, who were unlicensed independent service organizations, committed contributory copyright infringement. From the [Title 17, U.S. Code](http://www.copyright.gov/title17/92chap5.html#506): **§ 506. Criminal offenses** **(a) Criminal Infringement.** — Any person who infringes a copyright willfully either — (1) for purposes of commercial advantage or private financial gain, or (2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000, shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement. [§ 2319. Criminal infringement of a copyright](http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002319----000-.html). ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 20, 2007, 7:54pm UTC](https://boards.straightdope.com/t/illegality-of-breaking-licensing-agreements/400877/7 "2007-04-20T19:54:29Z")
If a piece of software is protectable under copyright law (creative, original, and fixed in a perceivable medium), then unauthorized copying of that software may constitute copyright infringement, regardless of the licensing agreement. The reason for licensing agreements is to bypass the limitations of copyright protection, such as fair use. If you claim that a particular bit of copying was fair use (such as for metrics or for using on more than one computer), the software developer can then point to the licensing agreement which probably prohibits copying regardless of any fair use rights. ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [April 20, 2007, 10:15pm UTC](https://boards.straightdope.com/t/illegality-of-breaking-licensing-agreements/400877/8 "2007-04-20T22:15:35Z")
[QUOTE=acsenray] If you claim that a particular bit of copying was fair use (such as for metrics or for using on more than one computer), the software developer can then point to the licensing agreement which probably prohibits copying regardless of any fair use rights. [/QUOTE] Yes, but is it _illegal_? I think that’s what the OP’s after. Can the FBI come in and bust you with some type of federal charge? Or can you only be sued? ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [April 20, 2007, 11:17pm UTC](https://boards.straightdope.com/t/illegality-of-breaking-licensing-agreements/400877/9 "2007-04-20T23:17:27Z")
The question has already been answered. Please see my previous post. Several federal courts have ruled that if the licensee’s use exceeds the scope of the license, it is a copyright infringement. And any willful copyright infringment “for purposes of commercial advantage or private financial gain” is a federal crime. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [April 21, 2007, 5:40pm UTC](https://boards.straightdope.com/t/illegality-of-breaking-licensing-agreements/400877/10 "2007-04-21T17:40:20Z")
Let me try this a different way. Infringing someone’s copyright can be a crime under some circumstances: [http://www.straightdope.com/mailbag/mcopyright3.htm](http://www.straightdope.com/mailbag/mcopyright3.htm) Permission, through a license agreement, is a defense to infringement. A license agreement might also include some provisions that attempt to extend the copyright holders’ rights beyond the protections offered by copyright law. So it depends on which provisions you are violating. If the license agreement says you get to run three copies of the software, you can run three copies without infringing the copyright. Four copies would be an infringement without the license agreement, and since the license agreement only permits three, it doesn’t help. Whether such a violation of the licensing agreement is criminal will turn on the facts of the case, but the license agreement is certainly no defense unless you complied with it. Breaching some other provision of the agreement–I’m not looking one up right now, but assume the agreement has provisions in which you agree not to copy portions of the work that aren’t protected by copyright, for example–isn’t going to result in criminal liability, at least directly. Indirectly, it could, depending on the terms of the agreement. In some cases, your violation might be so big that it voids the license granted in the rest of the agreement–which means that whatever copying was done after the breach is infringement. Even then, it’s doubtful that a criminal prosecution would be sucessful. “In order for the violation to be criminal, it must be willful. That means the defendant knew that copying was infringement or showed reckless disregard for the copyright holder’s rights.” _Id._ The defense would have a good argument that despite a substantial breach of the contract, the defendant reasonably relied on the license agreement. In other words, the short answer is breaching a license agreement isn’t a crime, but the license to copy depends on the terms of the agreement. A violation of a license agreement could result in a prosecution for copyright infringement under the right circumstances. ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [April 22, 2007, 12:03am UTC](https://boards.straightdope.com/t/illegality-of-breaking-licensing-agreements/400877/11 "2007-04-22T00:03:40Z")
Well, in the sense of running more than one copy, I already understood that and I think that that should be obvious infringement. But there are other things in license agreements. Let’s take this worn example – running Vista Home edition in a virtual machine. Let’s say in Parallels on my Mac. I’m only running a single copy, so that’s fair use by any definition. But the license prohibits running Home edition in a virtual machine. That’s not criminal copyright infringement, that’s only a license violation. Can I be brought up on some type of charge? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [April 22, 2007, 12:23am UTC](https://boards.straightdope.com/t/illegality-of-breaking-licensing-agreements/400877/12 "2007-04-22T00:23:54Z")
[QUOTE=Balthisar] Well, in the sense of running more than one copy, I already understood that and I think that that should be obvious infringement. But there are other things in license agreements. Let’s take this worn example – running Vista Home edition in a virtual machine. Let’s say in Parallels on my Mac. I’m only running a single copy, so that’s fair use by any definition. But the license prohibits running Home edition in a virtual machine. That’s not criminal copyright infringement, that’s only a license violation. Can I be brought up on some type of charge? [/QUOTE] There is no crime in the federal criminal code called breach of license agreement. Every case stands or falls on the elements of the crime charged. If, as you say, it’s not copyright infringement, then it can’t be willful infringement.