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BizIPEsq.
BizIPEsq., Attorney
Category: Intellectual Property Law
Satisfied Customers: 996
Experience:  I am a tech attorney and I represent clients with technology, internet and intellectual property matters
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What are the consequences of violating the license agreement

Customer Question

What are the consequences of violating the license agreement of a software or website account, when the violation is done for the purpose of academic research and studying the security and privacy of the software or website. The findings in the research needs to be published and sometimes explicitly mentioning the software or website name.

If the license agreement has been violated as mentioned above can it lead to criminal case?

Will it lead to a civil lawsuit, as the company repute may be damaged when we publish our findings?

What's the legal way of doing this kind of research? Usually people in the computer security and privacy community let the company know their findings before publishing their work, so the company can fix the problem.
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  BizIPEsq. replied 1 year ago.

<span class="JA_chatAuthorName"Customer :

hello, I will be assisting you.

<span class="JA_chatAuthorName"Customer :

Let me review the question.

Customer :

Sure

<span class="JA_chatAuthorName"Customer :

Generally speaking, under trademark fair-use doctrine you one can mention brand names in works involving criticism, news or academic research among some permissive uses. So notwithstanding what the site's terms of use say, one is permitted to include website name and mention the software.

<span class="JA_chatAuthorName"Customer :

It is unlikely that the use contemplated in the question can lead to criminal charges. Criminal charges in cases involving trademarks are often for forging trademarks not mentioning them in academic work.

<span class="JA_chatAuthorName"Customer :

You are correct to note that typically security researchers will notify the company if they find security breaches. This is meant in part to assist the public but also to assure the company that the security researcher is acting in good faith and is not actually a hacker disguised as a security researcher.

<span class="JA_chatAuthorName"Customer :

Thank you for allowing me to assist you

<span class="JA_chatAuthorName"Customer :

I trust I answered your questions. Please rate my answer. Without your rating I do not get compensated for my work.

Customer :

Can you please give more details, because I set level of detail to high and the answer is short.

<span class="JA_chatAuthorName"Customer :

Trademark laws permit a non mark owner to use a trademark nominatively. This means that a mark can be used for example in comparison advertising, to refer to the product's source, to criticize the product or analyze it.

<span class="JA_chatAuthorName"Customer :

The nominative use test essentially states that one may use or refer to the trademark of another if:

i) The product or service cannot be readily identified without using the trademark
ii) The user only uses as much of the mark as is necessary for the identification
iii) The user does nothing to suggest sponsorship or endorsement by the trademark holder.

Customer :

http://my.navizon.com/Webapps/UserAdmin/LicenseAgreement.htm

Customer :

Actually, its more than just using the trademark, if you study this website, I will be able to steal their entire database of information, though we are not gonna use it for any other purpose than academic research. And, here we are violating the contract. So my question is what if we violate the agreement.

<span class="JA_chatAuthorName"Customer :

BTW, apologies in advance but experts on Just Answer are not permitted to review specific documents. Can you describe in general what will you be researching?

<span class="JA_chatAuthorName"Customer :

are still in chat?

Customer :

I am sorry, I was talking to someone, so what we will be doing is that an Android app, essentially we reverse engineer the app and simulate the app on the computer and the contract says to do no reverse engineering.

Customer :

and then we can use the simulated app to query the database of the company and we think our approach can potentially steal the entire database of the company.

<span class="JA_chatAuthorName"Customer :

Thank you for clarifying.

<span class="JA_chatAuthorName"Customer :

Are you doing this as part of academic research? If so can you describe the circumstances (CS class, maybe graduate thesis etc.)?

Customer :

Yes, we are doing it as academic research as part of my computer science PhD.

Customer :

though its not my primary focus, but its one area in which I am working with my colleagues

<span class="JA_chatAuthorName"Customer :

This one is a tough one. On the one hand as part of academic research generally under the fair use doctrine you have the right to use copyright materials without the copyright holder's permission for research and criticism. However on the other side, this is not necessarily a matter involving the first amendment (most fair use cases come about as a result of first amendment claims) because it involves back engineering an application and an associated database and this does not involve first amendment (the act of criticism such an application would be 1st amend. but the act of back engineering generally wouldn't)

<span class="JA_chatAuthorName"Customer :

There are other over arching issues as well. Generally speaking, according to the DMCA (Digital Millennium Copyright Act) reverse engineering is lawful as long as the item that is being reverse engineered has been obtained legitimately. In your case however the EULA specifically prohibits reverse engineering and therefore the software would NOT be considered as if obtained legitimately. There are a number of court cases on this topic that note that the contractual prohibitions contained in the EULA override the copyright law.

<span class="JA_chatAuthorName"Customer :

So this leaves you in a bad spot. By continuing this project you are definitely taking a risk, though it's impossible to assess the risk without the company's input. To the extent possible I would contact the company and explain that you are a PhD and you are conducting research and that if you make certain findings you will of course disclose it to them first and then you would like their cooperation.

<span class="JA_chatAuthorName"Customer :

This would be the safest route for you.

<span class="JA_chatAuthorName"Customer :

Thank you for allowing me to assist you

<span class="JA_chatAuthorName"Customer :

Please rate my answer. Without your positive rating I do not get compensated for my work.

BizIPEsq., Attorney
Satisfied Customers: 996
Experience: I am a tech attorney and I represent clients with technology, internet and intellectual property matters
BizIPEsq. and 5 other Intellectual Property Law Specialists are ready to help you
Customer: replied 1 year ago.

I just use the term reverse engineering for ease of explanation but in reality its not reverse engineering the software, our aim is to understand the protocol and it can be done without reverse engineering.

Expert:  BizIPEsq. replied 1 year ago.

Regardless of whether it is reverse engineering or not my analysis stands. As noted, to a large extent, reverse engineering is actually permitted by law. So the fact that you will only be examining this does not change my original analysis of running afoul of the EULA and some limitations you will have in publicizing your findings.

 

Realistically, speaking if it's purely for internal academic consumption your exposure is very low but if you intend to publicize the study or write your thesis with it then be aware of the potential challenges ahead or contact the company and seek permission.

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