But now you mention it... What happened to the people who created sub7/backorifice? Have they been arrested too? Are they too punished for creating such a tool? The fact that they are giving it away for free doesn't mean they are not responsible for how it is used? Right?
WRONG!

There is a big difference between supplying something free/proof of concept etc. and selling it for $89, with a clear incitement to use it illegally. Particularly as it was largely advertised through spam e-mail. On top of that, this guy provided a service to facilitate illegal surveillance. After all you can get sub7/backorifice easily enough but you still have the problem of getting it on the target machine.