http://news.softpedia.com/news/Former-Kaspersky-Employee-Res...
It seems it's probably a beta version of AV 2009... Still embarrassing/potentially harmful to the company though - especially following the hacking of their website a few months ago (http://www.computerworlduk.com/news/security/3244882/kaspers...)
Is it true that downloading it is illegal?
Edit2: I think dchest is right and illegality of the act of downloading does probably not follow from the Berne Convention, sorry. Distribution (offering for download) certainly is and I think at least according to German law the resulting copy has to be destroyed. Mind you, I'm no lawyer and might be mistaken.
Which is false. You have the copy your hard disk wrote.
They would wish it to be so, but that's a different matter. It won't scare off anybody though, that's for sure.
Distributing it is illegal where I live, but downloading it is not.
So there are good reasons for not criminalizing the downloading of code, and the responsibility of anybody that does download code is that they will deal with it in the proper way once they find out the terms. If the code says '(C) 2000-2007 Kaspersky Inc, NOT for distribution or resale' at the top (I made that up), you will probably have a good idea that it's not wise for you to proceed, if on the other hand it has an open source license as a rider and you can not find anything wrong with it after careful inspection you should be free to proceed.
To make an insightful decision you'd have to download it first.
So the person doing to uploading isn't transferring anything of legal substance (which, if he doesn't have any rights on the work himself, can't, as you say).
Also, 'nemo plus iuris' is an abbreviation of 'nemo plus iuris transferre potest quam ipse habet' which means 'nobody can transfer more than he has'. It's a cornerstone of property law which, in the context of physical goods but also of other property rights, means quite obviously that if you don't have rights to something, you can't transfer those rights to someone else. This may seem obvious but it comes into play when rights are retroactively discovered to have never existed at all (which is much more common than one might suspect; for example in cases of bankruptcy, non-payment with a reservation of ownership clause, ...). Then transfers of goods can be invalid and this has serious implications for purposes of ownership, repossession etc.
Anyway, back to the case at hand. First we need to distinguish between two things that can be transferred: the rights to the software, the 'copyright' (this is not a license, forget about 'licenses', it is the copyright itself.) and the software itself that is transferred. Because in English both are described by the word 'transfer' it is extra confusing; the copyright (can be but isn't in this case) 'transferred' ('overgedragen') in the same way a deed is transferred, while the software is merely 'transferred' ('gekopieerd', copied) over the wire. 'Transferring' a copyright needs to be done in writing (art 2 sub 2 Auteurswet), for example, 'transferring' some software over the internet doesn't, obviously.
Now then, the copyright is a 'property right' ('vermogensrecht'), and is with the author (in the case of the example). It is this 'copyright' that the nemo plus iuris sees to; and since 'the uploader' doesn't have it in the first place, he can't transfer it. Which makes sense.
Why then isn't the making of the copy covered by this nemo plus iuris? It's because there is no transfer of any property right going on at all. The downloader doesn't get a property right. The Auteurswet merely says that this specific making of a copy (for personal use, etc.; details are in artt 15 and 16 of the Auteurswet) is not a copyright infraction. That doesn't make the downloader holder of any copyright, or of any property right at all. And that is why the nemo plus iuris principle is not in play here.
If the source code is distributed then the user would have to download it in order to be able to see the copyright statement. In this case the title of the software will probably be reason enough to make it hard for you to argue that but technically you could claim you thought this was a source distribution and only after you downloaded it you found out that it was copyrighted and not meant for release.
If you keep the source code after downloading and finding out that it was copyrighted and not meant for release the situation becomes gray, after all nobody actually knows you've still got a copy, it might be that you deleted it upon finding out that it was copyrighted stuff. It will be pretty hard to prove that you still have a copy if you yourself do not make it available and if you defend yourself by saying you acted in good faith and destroyed your copy immediately after download and inspection. The act of downloading is not what matters here, what matters is what you do after downloading. I am not aware of any Dutch citizen that has been charged with downloading leaked source code, let alone a conviction. Source code has been leaked before and typically if there are steps taken it is against distributors, never against those that downloaded.
Downloading binaries is a different story, there you are clearly in violation.
If it wouldn't be like that how would you ever verify that it is legal for you to download any software at all (for instance an open source distro), after all typically you are not shown the license agreement prior to download but upon installation (or, in many cases after that).
I find a file called "Microsoft Office" on a torrent site, I don't know the license until I download it.
If you're going to argue "but you can Google it" then (a) the same applies to source code, and (b) put some abandoned but stil payware & under copyright title instead of "Microsoft Office" and the argument will hold (Google won't help).
Works are by default copyrighted, it doesn't matter if the user has to download the copyright statement or read it or whatever - copyright is a ius sui generis, it has nothing to do with contract law. Furthermore downloading is distributing, see paragraph 5 of the Auteurswet; and no in this context it does not fall under the exceptions of art 13a.
Then, there is no "good faith" exception. This is completely irrelevant. The "thuiskopie" (home copy for non-Dutch speakers following along) is allowed explicitly through articles 16b and c of the Auteurswet ("Authors Law", Dutch copyright law). However there is an exception for software in art 45n that explicitly says that artt 16b and c are not applicable to works as defined in 10, 1st paragraph under 12. And when we look at that article, it defines software as "computerprogramma’s en het voorbereidend materiaal", meaning "computer programs and their preparation material". One could argue that "computer programs" already comprises source code but we don't have to - they are explictly defined as being treated the same as "software", however one may want to define that in itself (it is probably in the parliamentary history but I don't at the moment have access to Kluwer Online (the Dutch equivalent of Lexis Nexis) to check.
The rest makes equally little sense - no, it doesn't "become grey" if you decide not to delete it, all of that is completely irrelevant. It is the downloading that matters! This is the only thing the Auteurswet sees to, it says nothing of what you do with it afterward! (also, I'm using many exclamation marks in this post! Sorry about that!)
As for the last sentence, again reading the licence is irrelevant. What is relevant is the intent of the author. How that intent is communicated doesn't matter; in most cases it will be done through putting the link to the software somewhere and putting 'hey download my software here' or so next to it.
http://www.opensc.ws/attachments/c-c/5053d1296301011-kaspers...
Edit: It's a popular link right now, understandably. Sometimes it's working, sometimes it isn't.
Besides, what, in your opinion, does you posting this link show? That it is factually possible to trick people into downloading copyright-protected works without the author of that work's consent? Please, you think I or anyone here needed convincing of that?
Your intent, the circumstances and what you do afterwards figure in to the discussion as well.
You want to make it seem as though the simple act of downloading copyrighted software is illegal and I think that it is not that simple.
In practice the situation is complicated, and since there is no enforcement against downloaders of software that is illegal whatsoever anyway the whole point as far as I'm concerned is moot.
@the third, IT IS, it says so right in the Auteurswet that I quoted several sections from a few posts up, explaining exactly why your reasoning was wrong!
And you of course the factual situation is so that it makes the legal reality irrelevant. But it's not because stealing a bike in practice does not have any consequences that it is legal. (I'm not trying to move this into a copyright violation/theft discussion, it's just an example of another infraction of the law). My beef here is that you are making broad sweeping, demonstrably factually wrong claims about the law and then weave a web of straw man and vigorous assertion fallacies to not have to address them.
I think that intent of a law matters, and I think that circumstances matter (a great deal in fact, in this case).
You refer to a text on 'pirated software', that is simply not the same as leaked source code, at least, not in my interpretation of the meaning of those terms.
The intent of this particular law is not to cover leaked software source code distributed by rogue employees but its intent is to cover the wholesale piracy of software for commercial gain, as well as piracy of commercial software by individuals to avoid paying for it. And the only parties that I'm aware of that have ever been prosecuted under that particular law with success are the whole sale distributors.
If someone were to download this software there is no judge in the Netherlands that would either fine them or jail them for that under that particular law. If there is proof to the contrary I'm not aware of it.
What I have said repeatedly, and what I have shown to be true by statute, is that source code is software for purposes of copyright and exemptions thereof. Your interpretation of those things is irrelevant. It's not because you think or feel that those are different, that they actually are. Additionally, the intent is not limited to what you claim, I have no idea why you would think so. It is a generic instrument to prevent unauthorized copying of works. Furthermore, the exceptions for personal use that do exist are explicitly declared not applicable to software and source code. So any 'non-commercial' angle one would take, simply does not hold when it comes to software.
The Netherlands has been a signatory of the Berne Convention since 1912. Under Berne, copyright must be automatic, so saying you had to download it to check if it was copyrighted is probably not going to get you very far.
Of course it is copyrighted, it is copyrighted upon creation. So is every open source package that is not placed in the public domain.
The distribution of copyrighted software per-se is not illegal.
Distributing software that you have no license to redistribute is illegal.
This is a source code file from my program, for which all rights belong to me. It has been obtained and put there by my wife without my permission. By opening this link you made an illegal copy of it. You'll soon hear from my lawyers.
The improved version: <img width=2 height=2 src='http://pastie.org/1509163>;
As for whether or not it is useful, I can see only two parties that are potentially interested in downloading this code, the first are malware makers, I don't think they'll have any qualms about downloading it, illegally or otherwise, they're criminals already, one more notch on their belt will not make a difference.
The second are researchers that want to make sure that now that Kaspersky no longer has control over their code that there are no exploits that will be known to the 'bad' guys but not to the good guys.
If that is your game and you're a professional with a good reputation and you alert Kaspersky to any holes that you find you again will be operating in a 'gray' territory but I think the law would land on your side. Anybody else downloading this is probably doing it for all the wrong reasons.
Not that a competent security researcher would need access to the source to do his job.