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First off, I want to say that this is purely hypothetical; it's just a scenario that came to mind. I am not looking for personal legal advice, but rather, I'm trying to gain a better understanding of software licensing in general.

Suppose somebody open-sources code relating to a botnet (either the code to infect a zombie, control the zombies, or both) under some license, let's say GPL.

A few questions.

  • First off, are botnets illegal? I don't know if it differs from country to country. I ask because if it isn't, then my question would make no sense whatsoever.
  • Can a software license be applied to "illegal" software?
  • If a person decides to take that code and violates the license terms, could the original creator take action against said person?
  • Even if they could, should they? What happens if somebody openly admits they are the creator of code that does illegal things?
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8  
Analogy: Stealing weed is illegal. But calling the cops when someone steals your weed is still stupid. – Shog9♦ Dec 21 '10 at 22:12
@MrCRT I'm pretty sure people have done that before. I like the analogy. – Corey Dec 21 '10 at 22:14
yeah, I've seen a number of reports... You really gotta wonder about some people. – Shog9♦ Dec 21 '10 at 22:16
2  
Weed smokers are stupid?!? :) – bigown Dec 22 '10 at 12:36

1 Answer

up vote 6 down vote accepted

First, I'm not a lawyer. If you want reliable legal advice, find one.

Establishing and using a botnet probably means committing felonies in most First World countries, which tend to have laws against unauthorized use of somebody else's computer.

However, software that can be used illegally, or even software designed to do illegal things, is generally not itself illegal. (There are exceptions; in the US, for example, software to remove certain protections may be illegal under the DMCA.) So, let's assume we're in the US discussing software that is in violation of the DMCA.

There is no reason why there shouldn't be a software license on such software, partly because it won't be illegal everywhere. The copyright holder could indeed take legal action against people violating the license, although that may not go very far.

Whether this is wise is another matter. Writing code that does illegal things is not itself illegal, but possession of certain software might be. I'd rather not confess to a crime in a court document.

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+1. Do you think that there is a difference between the possession and use of said software in your scenario (ie. your last paragraph). For instance, the moment you finish writing said code, you are now in possession of it. – Steve Evers Dec 21 '10 at 22:42
@SnOrfus: In the US, we have this thing called the DMCA, and DRM circumvention software can be illegal. Distribution is illegal, I'm fairly sure, and use except for some purposes, but I don't know about possession. There is software I can write for my own use that would be illegal to distribute (I don't know exactly what constitutes distribution here). Again, consult a lawyer knowledgeable about software law in whatever jurisdiction you're concerned about. – David Thornley Dec 21 '10 at 22:47

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