Is it perfectly legal to release an open source botnet registered under the MIT license? I understand that statements such as 'you download this program agreeing everything you do with it is on your own accord, and the creator cannot be held accountable for anything done with this software' may not be accepted in court if it came to that.

So, is it legal to release open source malware under a specific license, or is it just completely illegal.

  • How would the license matter? – curiousdannii Feb 12 '18 at 12:13
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    For the legal question, it would depend on what specific things the program does, and whether they were authorized. For example, a program which deletes all data on my computer might be malware, but it could also be an ordinary disk tool; the only important difference is whether the program has authorization to do what it does. Look for things like 'malware' and 'computer virus' on law.stackexchange.com to learn more. Perhaps you want to ask that SE about liability in case someone uses your MIT licensed software to damage others' computers. – Brandin Feb 12 '18 at 13:47
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    I'm voting to close this question as off-topic, because I think it is more suited to law.stackexchange.com. The usual disclaimers of I am not a lawyer, and this is not legal advice apply here. The legality of the program likely depends on its purpose. Does it intend to gain unauthorized access to a computer program ? If so, it's likely illegal. The OP hasn't stated how the license relates to the software under development. Any license around something illegal is not enforceable. – airfishey Feb 12 '18 at 17:09
  • In EU yes — UK law computer miss use act: distributing software of device with the intention of doing harm. – ctrl-alt-delor Feb 23 '18 at 0:05

Strictly from a copyright perspective, I know of no impediment to the copyrightability of malicious code. In patent law, there is a requirement of an invention to possess "moral utility" -- that is, a utility that is not inherently morally abhorrent -- though no such requirement exists for copyright, not least because the question of "utility" is one that does not apply generally to creative works. If the work possesses a modicum of creativity and is original (or a derivative created with appropriate license), then it is covered under copyright. (However, as a fascinating tangent and mild counterpoint, have a look at the uneven history of the copyrightability of obscene works!)

However, your application might run afoul of other laws. For example, the distribution of software whose purpose is to circumvent access-restrictions to copyrighted works is a violation of the DMCA in the United States (in particular 17 USC § 1201(a)(2)). There may be statutes in some jurisdictions that similarly prohibit distribution of software that does some objectionable action (e.g., cooperation in a botnet). Your copyright and license on the malware may be legally valid, but you may be legally liable for violating a statute that prohibits distribution of malware.

I don't know to what degree you could be liable for malicious use of your botnet by another person, but it may be nonzero. (This will surely vary by jurisdiction.)

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