copyright internet software patents china
In which sense is software cracking illegal?
<p>I wonder which of the following behaviors are illegal in China:</p>

<ol>
<li>Cracking a software and using it.</li>
<li>Cracking a software and distribute it without charging.</li>
<li>Cracking a software and reselling the cracked version.</li>
<li>Using software cracked by someone else.</li>
<li>(Maybe there are other illegal behavior worth mentioning?)</li>
</ol>

<p>Background information: This post actually comes from <a href="https://academia.stackexchange.com/q/76692/61692">my previous question</a>.</p>

<p>The current version of copyright law in the PRC is <a href="https://en.wikisource.org/wiki/Copyright_Law_of_the_People%27s_Republic_of_China_(2010)">here</a>. Art. 10 states what is protected, which includes the standard rights of distribution, copying, modification and so on (which makes software cracking illegal). Article 22 gives the equivalent of the Fair Use limitation on copyright protection:</p>

<blockquote>
  <p>a work may be exploited without the permission from, and without
  payment of remuneration to, the copyright owner, provided that the
  name of the author and the title of the work are mentioned and the
  other rights enjoyed by the copyright owner by virtue of this Law are
  not infringed upon</p>
</blockquote>

<p>for 12 specific reasons (translation into Braille or a minority national language, free public performances, quotation to make a point end so on), which includes some potentially applicable reasons</p>

<blockquote>
  <p>(1) use of a published work for the purposes of the user's own private
  study, research or self-entertainment</p>
  
  <p>(6) translation or reproduction, in a small quality of copies, of a
  published work for use by teachers or scientific researchers in
  classroom teaching or scientific research, provided that the
  translation or reproduction is not published or distributed</p>
  
  <p>(7) use of a published work by a State organ within the reasonable
  scope for the purpose of fulfilling its official duties</p>
</blockquote>

<p>It is unclear what "State organ" refers to and it is unlikely that a university is a "State organ". It is unlikely that (1) and (6) are interpreted as an across-the-board "education exception" to copyright, but that could be an avenue for legality. The standard misconception of copyright law is that anything done for educational purposes is allowed, and the PRC law seems to have at least the seeds of such a misunderstanding.</p>

<p>However... software protection is subject to separate regulation in Decree No.339 of the State Council, an English version being <a href="http://www.wipo.int/edocs/lexdocs/laws/en/cn/cn002en.pdf">here</a>. The regulations recapitulate the basics of copyright protection; software cracking is regulated under Art. 23, which says that </p>

<blockquote>
  <p>anyone who commits any of the following acts of infringement shall, in light of the circumstances, bear civil liability by means of ceasing infringements, eliminating ill effects, making an apology, or compensating for losses:...</p>
  
  <p>(5)to alter or translate a piece of software without the authorization</p>
</blockquote>

<p>Art. 24 continues, saying that it is forbidden </p>

<blockquote>
  <p>(3)  to  knowingly  circumvent  or sabotage  technological  measures used by the copyright owner for protecting the software copyright; </p>
  
  <p>(4) to knowingly remove or alter any electronic rights management information attached to a copy of a piece of software</p>
</blockquote>

<p>That covers cracking. Article 30 covers the situation of someone using pre-cracked software:</p>

<blockquote>
  <p>A holder  of  copies  of  a  piece  of  software  that  neither knows
  nor has reasonable grounds to know that such copies are infringing
  ones  does  not  bear  liability  of  compensation  but  shall  cease 
  the  use  of, and destroy, the infringing copies. Nevertheless, if the
  cease of use or the destruction  of  such  copies  is  likely  to 
  cause  heavy  losses  to  him,  the  holder  of  such  copies  may, 
  after  paying  reasonable  remuneration  to  the software copyright
  owner, continue to use such copies.</p>
</blockquote>

<p>A mere user who is discovered simply has to stop, unless they should have known that the copy was illegal in which case they would be responsible for compensating the rights holder – I have no idea what the standards are for having reasonable grounds to know.</p>
