The DMCA certainly can't legitimize or be hidden behind if a botnet is discovered. The software is being used to commit crimes, and the crimes would far outweigh any defense using copyright laws. The DMCA doesn't defend itself, so the author of the botnet software would have to go on the offensive and track down whoever reversed it and cite the DMCA and sue. Needless to say, that would be futile and probably thrown out of court. With possible felonies piled up on him, enforcing the DMCA on his botnet software against some security guy who reversed it would be the last thing on his mind.

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