I was talking to a friend yesterday and he told me he found out one of his programmers he contracted some work to is using pirate software, basically just about everything he has in his computer, windows, visual c, etc.

While I know this is illegal and not really nice, I keep wondering what is the status of that work. My friend paid for it and only recently (after 3 months of work I think) has he found out. I guess with code is always hard as it can be done in notepad, but for stuff like 3d models with 3ds max information (.max) or anything, is it legal to use those assets even if they were done in illegal copies of the software ? I would have thought no, but since this was contract work, shouldnt the contractor be the one caring about that and allowing the person that contracted him to be risk free?

Any ideas?

My feeling would be that if you were dealing honestly with a contractor, and then found out afterwards that he was using pirated software, then don't worry about it. Keep the stuff he produced, because you were dealing in good faith at the time. But never use that contractor again, even if he claims to be completely legit. He's proven that he's dishonest, and you really don't want to deal with people like that.

You aren't required to have a max license in order to own a max asset.

also, there's usually a known clause in contracts stating what happends in case of law-suits.

I don't see how you can be held responsible for the legality of the tools your contractor uses. They're acting as a self employed service provider, so they're a totally separate entity from you. They provide their own tools which are not owned by you or your company, and the person is not an employee. Thus it's up to them to deal with legality of the tools.

It really doesn't matter... it would not be illegal to sell works created with pirated tools, whether you knew about it or not. The piracy is what's illegal.

Well, at the recent IGC session on legal issues for indies, a similar question was raised. (Someone asked if they were liable for copyright infringement if the infringing was done by a contractor. The short answer was "yes"). What it boils down to is this: one doesn't need to be "right" to sue someone else, they just have to have the resources to do so. As an example, another topic from the IGC legal session had to do with trademark infringement: even if you're not infringing on, say, Coca Cola's trademark, Coca Cola can still sue you and it costs a minimum of tens of thousands of dollars to hire a lawyer to defend yourself in Federal trademark court. Therefore, my advice would be to 1. contact someone who knows about this stuff (Thomas Buscaglia would be a good choice [www.intelaw.com]--he was the attorney who gave the talk at the IGC and he's very interested in helping out indie developers wrt to legal issues) and 2. drop that contractor like a bad habit.

Originally posted by kerchen
Well, at the recent IGC session on legal issues for indies, a similar question was raised. (Someone asked if they were liable for copyright infringement if the infringing was done by a contractor. The short answer was "yes").

Copyright infringement is very a different thing. It implies that you have used copyrighted resources (or copies of them or whatever) in your product. In that case, nobody gives a crap how the resources got into your product and of course they'll sue you. If you bought resources created by an unlicensed version of a program from a third party, you're not doing anything illegal yourself since you and/or your company don't own or use an illegal copy of the software. As an analogy, imagine you paid to have your house painted, and the painter was using stolen tools (or even paint). Regardless of whether you knew this or not, if you have nothing to do with the painter there's nothing anyone can charge you with. Same for a car garage. If a garage uses stolen parts and you paid them to fix your car, are you liable?

Don't get me wrong, I'm not suggesting that we should be working with such people, but it can happen. And if it does you just don't work with that person anymore, nothing more you can do.

True, the piracy issue and copyright infringement are different in the eyes of the law, but that's not the point. The point is that, when it comes to defending yourself in a court of law, it doesn't matter whether or not you're legally at fault: if you're named in a lawsuit or charged with a crime, you either have to admit guilt or pay an attorney to help you fight it. The analogies to house painting or auto repair really don't work because, if the prosecutor thinks you might have reasonably known the goods (paint, car parts) were stolen, you'll be arrested and charged with a crime (specifically, receiving stolen goods). Even if you're as pure as the driven snow, you'll still have to pay.

Yeah the analogies can get messy depending on your level of involvement with the illegal activity. As far as getting sued over anything or for any reason, I completely agree with you. However, why would someone sue you if it wasn't of any benefit to them? Why would a large company sue you for instance over something pointless and/or when they're wrong, and spend hundreds of thousands of dollars unless they could get something from you in return. Normally such things are settled with a cease and desist letter where someone mistakenly infringes on a copyright or something similar. It shouldn't go as far as a full blown lawsuit in most cases. But yes, it could. If someone really wants to sue you there's nothing stopping them. At least in this country.

The attorney who spoke at the IGC put the fear of God in me (which, I think, was his intention). In casual conversation, he told me about a few cases where there was no rhyme or reason to the lawsuit. Why try to get blood from a stone? Because you have a team of stone-squeezers on retainer! But, your point is well-taken: it's unlikely that any reasonable person or corporation would go after someone with shallow pockets. They'll just wait until the pockets get deeper. :)

Yep, you can certainly get sued over nothing. At the same time, you can also get hit by a milk truck that ran a red light, while crossing an intersection. :) Point is, sh*t happens. No sense worrying about things you have no control over and that have a very low probability of occurring. That's my philosophy. On that note, if I suddenly disappear for a long time, you can safely assume that I got killed by a runaway milk truck. ;)

The piracy and the breach of copyright are different for the following reason.

When you use material created with pirated software you are not committing an offence. The only offence is the pirating of the software by the contractor and that does not taint the assets he creates.

However when he steals an image/sound to use as the basis for the work that is breach of copyright - for which he is liable. He then passes that asset to you and you use it. You are now using copyright material without permission so you are committing a second, separate offence of breach of copyright. You can't be punished for his offence but you are liable for your own (even though you did not know).

This is the reason why all development contracts have a clause specifically stating that the developer/contractor warrants that the work is their own and that they indemnify you against any third party claims for breach of copyright.