In June 2016, we already covered a dispute between Microsoft and OOO “Elsi-Trek”. In essence, the American IT giant claimed compensation from OOO “Elsi-Trek” for violating copyright for software. The dispute began in early 2013 and was finally resolved by the end of 2016.
Heated discussions arose in case No. A20-2391/2013 proceedings regarding whether storing non-licensed software could be considered a violation of copyright.
Eventually, after passing all court instances up to the Supreme Court of the Russian Federation, which sent the case for retrial after it was concluded by the Intellectual Property Court, the arbitration court of the Kabardino-Balkar Republic in its Decision of 12/05/2016 adopted an unambiguous position on this issue.
The court established, that the software products that were seized from the OOO were modified by breaching technical means of the software’s protection, i.e. hacked (note by the author), which is forbidden by Article 1299 of the Civil Code (technical means of copyright protection). In accordance with the Resolution of both Plenums of the Supreme Arbitration Court and the Supreme Court of the Russian Federation No. 5/29 of 26.03.2009, means of circumvention of copyright protection cannot be advertised, offered for sale or sold specifically as means of circumvention of technical means of protection.
Main conclusions made by the court:
Using modified software in the absence of a written contract with the copyright holder is in itself an act of copyright infringement.
According to paragraph 31 of the Resolution No. 5/2, the right to reproduce a work (a computer program is equated to a literary work) is a right that is included in the exclusive right. Recycling means the creation of a new (derivative work) based on an already existing one.
Modification is a special case of such processing. Modification – this is any changes, including the translation of the program from one programming language to another (subparagraph 9, clause 2, article 1270 of the Civil Code of the Russian Federation). As an exception, it is possible to adapt – making changes that are carried out solely for the purposes of the functioning of the computer program or database on specific technical means of the user or under the management of specific user programs.
The argument of the LLC that it was not used by the software is rejected, since storage is a way of using copyright objects that, within the meaning of Art. 1270 of the Civil Code of the Russian Federation is a separate authority for the use of such a right. Accordingly, in itself, storage without the permission of the rightholder is a violation of his rights!
Based on which, the court found a violation of the exclusive copyright of Microsoft and granted the claim in full, awarding compensation in the amount of 134,241 rubles and 5,152 rubles of state duty.
Let’s sum up this case.
First, the hacking of the computer program violates the means of its protection (Article 1299 of the Civil Code of the Russian Federation), which is a modification of the program without the permission of the rightholder (subparagraph 9, clause 2, article 1270 of the Civil Code of the Russian Federation). Secondly, the very storage of the program without subsequent use is also a violation of rights (subparagraph 9, clause 2, article 1270 of the Civil Code of the Russian Federation).
Opinion. This decision is a landmark for the software industry, since subsequent decisions of the court can be based on the decision in this case, taking into account the fact that the case reached the Supreme Court of the Russian Federation and was considered by him, and also sent for new
consideration. Plus, this solution now gives the copyright holders the right to say that even if you just downloaded the program from the Internet to your computer and did not start using it (for yourself or for commercial purposes), you are already in violation of copyright. In this case it does not matter whether you knew or not that the program is hacked. In the end, you had to exercise due diligence, that is, download and buy the program from official sites (buy in regular stores). And if you did not do this, or downloaded the program intentionally, without paying the due reward, then you are the intruder, as the end user, and you will have to answer all the strictness of the law.
Image taken from yandex.ru
Note that the term “ООО” used in the context of this article refers to a limited liability company under the laws of Russian Federation.