The cyber age is a big challenge to the company like Microsoft, Adobe and Autodesk whose income mainly comes from the stand-alone software, for any netizen could get access to the copyrighted software easily through internet.
To prevent the easy software copy and pirating, the company tends to use the registration code or serial number for the software activation, or to adopt the DRM (digital right management) technology. However, a new problem is probably arousing after the old is settled, the solution of cracking is developed for such registration codes. Bridge IP Law Commentary today will analyze the legal responsibility for such cracking,
I. The cracking is kind of infringement to the software
It’s believed by someone that the registration code cracking is not infringement, for only the registration code not the software will be influenced by it. We reserve our opinion on such statement.
First, the registration code is valuable only when it is linked with the software, and there’re no conditions of infringement when the code is used alone; second, the purpose to crack the code is to infringe the software, and the registration cracking is kind of means of infringement. For these reasons, except the malicious spread of the registration code, any other code cracking shall be the infringement against the software copyright.
Furthermore, as to the function of the registration code, whatever it’s used to activate the software before installation or after, the demand of input registration code is actually kind of software license to the client. And to crack the registration code could lead to the unauthorized copy or using of the software, and that’s obviously kind of infringement.
II. The most common code cracking method and legal consequence
The most common code cracking methods on the internet include the malicious spread of the code, the manufacture and spread of the code generator, the spread of cracked software, and the following is the analysis on the liability of each infringement.
1. The malicious spread of the code. Strictly, it could not be deemed as method of code cracking, for the code spread is the genuine one, in other words, any original software could be activated by it, the question of it is that in such situation the code is gained by the infringer through illegal methods.
2. The manufacture and spread of code generator (activation crack). The manufacture and spread itself could not be determined as infringement, for all the source code belongs to the developer with no violation to others’ copyright. However, due to the only purpose of the code generator and activation crack is to crack the software, therefore the manufacture and spread of the generator is actually to seduce or help other’s infringement.
3. The direct release of the cracked software could constitute direct infringement to the legal right of the copyright owner, for it not only breaks the verification system behind the registration code, but also pirates the whole software linked with the serial number. Thus, the infringer shall take the direct liability for its infringement.
Those website dedicated to the broadcast of the above infringing content shall take the direct infringement liability, while the rest website uploading the infringing content could be exempted from the liability with the reference to the Safe Harbor Rule, by which the website shall delete all the cracked information on the notice from the right owner. And when the infringer could benefit from the release, and such benefit has reached certain amount, then the infringer may be sentenced the crime of copyright infringement and take the criminal liability.
It’s possibly puzzle some readers that once the netizen could get access to such software with no charge, how could infringers benefit from such infringement? Actually, the pirating in China has developed its own business mode, and many cracked software have been integrated with the third party software, such as the plug in of search engine and online shopping, through which the website may gain benefit from it. The worse example include the Trojan is built in the software for the stealing of the personal information and online bank information, and all these are the serious crime.
After the analysis on the legal nature of the cracked software, you may become interested on the combating infringing software. And as the professional IPR service website, Bridge IP Law Commentary has been the attorney of many international companies in fighting against the infringing software. You may contact us shall you found any infringement against your software.
Author: Mr. Luo Yanjie
Attorney-at-law of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.