Pair # 4: Masood, N. & Korganowski, L.

"Under what circumstances would it be right (or justified) to violate a license agreement?"

You purchase a copy-protected game that can be installed on only one machine. Because you are a sensible and careful computer professional, you use a piece of software that breaks the copy protection in order to make a backup copy in case the original is damaged.

It is generally prudent to make up backups or store archival copies of material that one deems to be valuable, whether it be e-mails, documents or even purchased software. However, one must be aware of the legality of creating archival copies of said material, particularly when it comes to software. The Copyright Modernization Act of Canada, which came into Royal assent in 2012 states in para 29.24 that a copyright is not infringed upon if one creates a copy of work that one has license to use (Government of Canada, 2012, p. 20). However, there are certain conditions.

Firstly, the copy is made for backup purposes only. Secondly, the source material is legally obtained and is not a copy itself. Thirdly, the “technological protection measures” were not circumvented to make the copy and lastly, the reproductions are not given away. This means that within the context of our scenario, it would be illegal, and in the strictest interpretation, unethical, to break the copyright protection to make the archival copy. There does not appear to be any grey area here if one goes by the legality of one’s country of residence.

Similarly, in the United States, the Digital Millennium Copyright Act states that it is legal to make archival copies of software that one has legally purchased (United States House of Representatives, 1998; U.S. Copyright Office, n.a.). It makes specific mention of circumvention of copy protection technology in Section 1201, indicating the illegality of doing so to enable backups. However, the Entertainment Software Association’s FAQ, states, “U.S. copyright law permits the creation of a backup copy of computer programs for archival purposes, but the law only allows a consumer to make an archival copy of the actual copy that he or she legally possesses” (Entertainment Software Association, 2015). It does not address circumvention of copy protection.

Due to the fact that it is completely legal in Canada to use tools that circumvent digital locks, it is highly likely that people will use them to protect against loss or damage of purchased software. Knowing full well that the justice system has neither the time nor the resources to prosecute every individual that circumvents a digital lock, it would absolutely be prudent to create a backup by all means.

While it may be illegal, if the user does not intend to profit from making the copy, it should not weigh on the users’ conscience with respect to their moral obligations to society and the software industry at large. It would be a stretch to term this a crime. Legality be damned!

References:

Electronic Frontier Foundation. (n.d.). Digital Millenium Copyright Act. Retrieved from Electronic Frontier Foundation: https://www.eff.org/issues/dmca

Entertainment Software Association. (2015). Content Protection FAQs. Retrieved from Entertainment Software Association: http://www.theesa.com/public-policy/intellectual-property/content-protection/content-protection-faqs/

Geist, M. (2012, November 13). What the New Copyright Law Means For You. Retrieved from Michael Geist: http://www.michaelgeist.ca/2012/11/c-11-impact/

Government of Canada. (2012, June 29). Copyright Modernization Act. Retrieved from Justice Laws Website: http://laws-lois.justice.gc.ca/PDF/2012_20.pdf

U.S. Copyright Office. (n.d.). Executive Summary Digital Millennium Copyright Act. Retrieved from United States Copyright Office: http://www.copyright.gov/reports/studies/dmca/dmca_executive.html

United States House of Representatives. (1998, October 08). Digital Millenium Copyright Act. Retrieved October 17, 2015, from United States Copyright Office: http://www.copyright.gov/legislation/hr2281.pdf