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Trademark & Innovation registration

 

Date of 01/11/2011

The question:
1. Legality of the use of software, that blocks illegally distributed content in torent net (hereinafter - the Program), in terms of criminal, civil and administrative Law of Russian Federation.

The list of documents:
1. The use and operation of the Program.

In terms of civil law, it is illegal to download and to distribute the information (film, movies, other objectives of copyright) – hereinafter called the content , without the consent of the owner of exclusive rights, according to paragraph 1 of Art. 1229 Civil Code of RF, in any nets, ways, etc. 

 

In accordance with Art. 1250 of the Civil Code copyrights csn be legally protected bby the ways, provided by the Civil Code, according to the right and the violation of the law.

 

As to Article 12,14 of the Civil Code of RF- one of the ways to protect the copyrights is to provide self-defense of the civil rights, which should be proportionate to the infringement and should not extend beyond the actions necessary to suppress it (self-defense in this case would be that the owner of exclusive rights represses the activities of distribution of the content, witch he has the copyright, by signing the contract with you to use the Program). In accordance with paragraph 2 of the Civil Code st.1250, possible ways to protect copyrights can be applied by copyrights owners, special collective organizations, as well as other persons in cases prescribed by law.

 

Thus, the validity of using the Program as the way to protect copyrights is determined through assessment category of "proportionality," "appropriate", nature of infringement of the copyright and the consequences of this violation, which are determined by the court in each case depending on individual circumstances.

 

The program may be recognized as the legal, valid way to protect civil rights, as we have:


- necessity, since blocking the distribution and downloading specific content is needed to prevent violations and protect the exclusive copyrights;
- proportionality, as blocking way is applied only to the specific content unit, the owner of witch is known, and the downloading and distribution of any other content in this case in no way violated.

This situation should also be considered in terms of conflict of criminal and civil law, because the use of a way to protect civil rights, while satisfying the requirements of civil law, can be prohibited by criminal law, shall be criminally liable.
Also we should take into account, that for the present time, torrent networks in Russia is considered as private relationship between the users who only use BitTorrent network as a platform for free exchange of the necessary files. Such relations are established on the initiative and with the consent of users with content or wanting to get content. So, any restrictions and the invasion of the information exchange process can be carried out only under the direct guidance of the law. Civil Code contains a prohibition on the use of the content without the consent of the exclusive copyrights owner.

Administrative responsibility for the violations in the field of computer information is not provided by the legislation of the Russian Federation.

Dispositions of the articles of Chapter 28 of the Criminal Code of RF are formulated as an alternative, ie, allowing various activities with the computer information. In this legislative determination of many of these actions do not exist. This means that the interpretation of such activities is dependent on the discretion of the investigator, prosecutor and the court.

At the moment, the precedent mainly lies in the fact that criminal proceedings involved a person who in any way illegally make copies of computer programs or hack the protection of licensed software. That is, the prosecution is directed against those who violate intellectual property rights. The precedent is not so wide , so it is very hard to make a conclusion about the interpretation of Articles of Chapter 28 of the Criminal Code.

Doctrinal analysis of Chapter 28 of the Criminal Code allows us to make the following conclusions:
 

Chapter 28. Crimes in the Sphere of Computer Information

Article 272. Illegal Accessing of Computer Information


1. Illegal access to legally-protected computer information, that is, information on machine-readable media, in computers, computer systems, and their networks, if this deed has involved the destruction, blocking, modification, or copying of information, or the disruption of the work of the computers, computer systems, or their networks,
shall be punishable by a fine in the amount up to two hundred thousand rubles or in the amount of the wage or salary, or any other income of the convicted person for a period up to eighteen months, or by compulsory works for a period of one hundred twenty to one hundred and eighty hours, or correctional labor for up to one year, or by imprisonment for a term up to two years.

2. The same deed, committed by a group of persons in a preliminary conspiracy or by an organized group, or by a person through his official position, and likewise by a person who has access to computers, computer systems, or their networks,
shal be punishable by a fine of one hundred thousand up to three hundred thousand rubles or the salary or other income for the period from one year to two years, or by compulsory works for a period of one hundred eighty to two hundred forty hours, or correctional labor for up to two years or arrest for a term of three to six months, or imprisonment for up to five years.

 

The second part of this article can be applied only to a special entity - a person who has lawfully access to a computer that stores information, witch you are not.

 

Doctrine analysis:

1. Computer information - this the one in memory of computer, information on various storage media, both connected to the computer and on portable devices, including floppy disks, laser and other drives, memory cards, etc. Any content (music, movies, etc.) certainly applies to computer information.

2. Computer information protected by the law - any information, protected by law in connection with the protection of property rights on computers and computer equipment. Essentially, this can be any information on another computer. It can refer to the information resources with limited access and not, can be protected as an object of copyright, and may not be protected as such. This definition is not limited by protected information, and information constituting state, commercial, professional, personal or family secrets. Any content that is located on the computer of a third party, for purposes of criminal law is protected by the law as the computer information. This is the specifics of the criminal law protection of computer information.

 

3. Access to information — this is the acquisition and use of the opportunity to receive, enter, modify or destroy information, or to influence on the process of its treatment. The Program is definitely a significant influence on the processing of information. However, this effect is carried out indirectly, as the torrent client program is working properly. Illegal access is associated with the violation of property rights of the owner or user of a computer. To access the information legally requires the consent, or any other ground, directly specified in the law.. The legislation of the Russian Federation does not provide the copyright owner the right of access to the information posted on someone else computer, without the consent of the owner of a computer.

4. Blocking the information is to create obstacles to a lawful access to it. Actions of the Program can beevaluated as the blocking of information, as they impede access to information for persons who have received consent from the owner of the computer that hosts information (consent is expressed in placing links to the file in the torrent network).

5. Violation of computer system or computer network can be seen the case, if the computer system or network is not fulfilling its functions, execute them improperly or in the event of a significant system performance degradation. Using the program in a certain way will cause a violation of the order of computer or computer network, as the violation of some international rules of the organization of the Internet (which, is not a regulatory act, duly ratified in Russia).

6. This offense is material, ie, offense involves the commission of acts and consequences of the offensive and is consummated with the onset of effects (blocking of information / computer malfunction).

7. Rea of ​​the offense - direct intention (awareness of the actual nature and actions of public danger, anticipating the effects and consequences of the onset of desire).

Thus, the disputed is in qualification the use of the Program by Part 1 article.272 of the Criminal Code ie for unauthorized access to legally protected computer information on a computer that results blocking of information / computer malfunction / disruption of a computer network (statement of charge).

Article 273. Creation, Use, and Dissemination of Harmful Computer Viruses


1. Creation of computer viruses or changing of existing programmes, which knowingly leads to the unsanctioned destruction, blocking, modification, or copying of information, the disruption of the work of computers, computer systems, or their networks, and also the use or dissemination of such viruses or machine-readable media with such viruses,
shall be punished by imprisonment for a term of three years with a fine of up to two hundred thousand rubles or the salary or other income for a period of eighteen months.

2. The same acts, which have involved grave consequences by negligence
hall be punished by imprisonment for a term not exceeding seven years.


1. A malicious program (mal ware) - a program leading to the sanctioned destruction, blocking, modification or copying of information, disruption of computers, their systems or networks. It is enough if the program is designed for at least one result. The definition of malicious program is broader then the concept of virus program, which, except for damage, must be able to spread itself.

2. Unauthorized blocking, modification, etc. means achieving this result without the permission of the owner of a computer or other lawful authority.
The work of Program may be viewed as a violation of some international rules of the organization of the Internet, ie, as a violation of the computer or network.
In this case there is no disruption to Torrent programs.

3. Creation (including changes in existing programs) of the malicious program means any activity aimed at writing a malicious program. This is not only the creative work of its author, but also the technical assistance provided to him by others.   Writing of mal ware, even without novelty features will be considered as the creation of malicious program

The process of creation of the malicious program will be completed as soon as it was formed in objective form in the set of data and commands designed to operate computers and other computing devices in order to obtain a certain result, if this is for damage.

4. Using a malicious program is direct use for unauthorized destruction, blocking, modification, copying information, violation of computers, their systems or networks.

5. Distribution of mal ware means both the transmission and reproduction of it by means of communication, as well as a simple transfer to another person in any form (including in the form of paper records). Distribution of mal ware's carriers means the transfer of media to another person, including copying or permission to copy the program to another person.

6. The subjective aspect of this crime is characterized by direct intention.

7. Corpus delicti is formal, ie, offense includes actions, regardless of the occurrence and effects, is considered finished from the moment of action, ie, is liable from the fact of creation of the program (even in the absence of action for its distribution or use).

8. The second part can be considered only in the presence of serious consequences (part 2 of article. 273) - an evaluation criterion, the presence of which is determined in each case, taking into account all the circumstances (for example, a person's death, personal injury, real risk of technological or military catastrophe, disruption of transport and communication, causing major property damage).

Thus, the question wether using of the Program according to the article 273 of The Criminal Code of RF is criminal or wether not, is very disputable.

 

Article 274. Violation of Rules for the Operation of Computers, Computer Systems, or Their Networks

 

1. Violation of rules for the operation of computers, computer systems, or their networks by a person who has access to computers, computer systems, or their networks, which had involved the destruction, blocking, or modification of legally-protected computer information, if this act has inflicted substantial damage,
shall be punished by deprivation of the right to occupy certain positions or to be engage in certain activities for up to five years, or by compulsory works for a period of one hundred eighty to two hundred forty hours, or restraint of liberty for up to two years.

2. The same act, which has involved by negligence grave consequences,
shall be punished with imprisonment for a term of four years.

Using of the Program can not be qualified as a crime, according to this article, because the obligatory consequence should be a substantial damage. Substantial damage — is estimated concept depends on the specific circumstances of the case, for an example of the importance and value of information for citizens, society and state, the amount of material damage as a result of destruction of information, the amount of damage, blocking, modification, computer, computer system or computer network and t . etc. In this case, the damage from the use of the Program is minimal, since it only blocks one particular unit of content, distribution of which was obviously illegal.
It seems that the likelihood of serious consequences (death, causing significant property damage) is very small.

The above substantive analysis of chapter 28 of the Criminal Code should be read in the set with the legal procedural aspects. In accordance with Article 20 of the Criminal Procedure Code criminal proceedings under articles of chapter 28 of the Criminal Code are matters of public prosecution, ie, excited at the request of any person, as well as on the initiative of law enforcement agencies and can not be finished in connection with the reconciliation of the parties. The probability that a person illegally handing out or downloads the content, apply for a crime is low, since the establishment of this fact will lead to his personal responsiblity for the violation of copyrights (regardless of legal action on his application). The probability of a criminal case initiated by law enforcement agencies also can be assessed as low because of the novelty, complexity, and small experience with the institution of criminal responsibility for crimes in the sphere of computer information.
In the case of a criminal offense,the result of specialized examination will have important impack in proving the fact of creation and (or) use of the program, as subject to criminal liability. Also it should be proved — that the specific person was the creator of the Program.

A challenging question is about criminal law applicable to this offense. The program can be used worldwide in any area and at any computer connected to the Internet. And the liability of the crime is determined by the law, applied in Territory of the crime (action), or in Territory where occurrence of the consequences happened).

Chapter 8 of the Criminal Code necessary defense (Article 37) and emergency (Article 39) are exceptions to the offenses, and are considered as no crime:
Protection from abuse, not violent or dangerous to the life of the defendant or another person or a threat of such violence is a legitimate, if there is no exceeding of the limits of necessary defense, witch is intentional action, clearly not appropriate to the nature and risk of encroachments.

It is not a crime to cause harm to legally protected interests in a state of emergency, that is to eliminate a direct danger to the individual and the rights of the person or other persons legally protected interests of society or the state, if this danger could not be eliminated by other means and at the same time were not exceeded the limits of extreme necessity.

Criteria for the state of self-defense, with the absence of life-threatening violence or imminent threat of violence:

1. There should be a dangerous encroachment. Exclusive rights are established and protected by law in accordance with Part 4 of the Civil Code. P.2 st.147 the Criminal Code establishes criminal liability for unauthorized use of copyright or related rights, committed on a large scale. Actions envisaged in this Article shall be deemed committed in large scale if the cost of copies of works or phonograms or value of the rights to the use of copyright and related rights exceeding fifty thousand rubles. Determine the amount of use at the time of application programs in a particular case can be difficult, but it is a sufficient criterion for the beginning of action which, if they acquire the character of the immediate pursuit of an offense under the offense st.147 the Criminal Code. Downloading and distribution of content without permission is illegal to use objects of copyright and related rights, ie, socially dangerous assault aimed at the specific rights of a particular person who arranges for (conclude a contract and authorize) the application program.

2. Encroachment should be real, and not an imaginary character. The fact of the illicit proliferation (download or upload) content should be established on the analysis of distributed content.
3. The presence of a socially dangerous assault, that is in the moment of committing assault action has begun and not ended. As stated above, the beginning of the program is preceded by a special procedure in which it is established that at the moment is illegal distribution of content.
4. Lack of exceeding the limits of necessary defense, that there is the match of action to severity of attacks. Since using the program will block downloading and distributing only the particular content, for which previously established that the illegality of its distribution, and downloading and distribution of any other content in no way affected, then there is a line of action of the defender faces danger of attack. A wish to distribute or download content does not cause any harm, because before the use of the Program shall apply all necessary measures to avoid exceeding the limits of necessary defense.
According to Part 3 of Article 37 of the Criminal Code provisions relating to the criteria of self-defense are equally applicable to all persons regardless of their professional or other special training or official position, and regardless of the possibility of avoiding socially dangerous attacks or seek help from others persons or authorities.

Criteria for the state of emergency:

1. The presence of a direct danger to the individual and the rights of the individual or others.

2. The danger is real, not imaginary character.

3. At the time of action the danger is not over.

4. Not exceeding the limits allowed emergency. Exceeding the limits of extreme necessity is recognized as causing harm, if it is not an appropriate nature and degree of danger and the circumstances under which the danger was eliminated. This excess is criminally liable only in cases of intentional injury.

- For the reasons indicated above (with respect to the criteria of self-defense) use the Software meets these criteria.

5. No possibility of other means to eliminate the danger. Despite the presence of opportunity to apply to persons distributing or downloading content, or to the owners of the torrent site to stop illegal activities, this criterion is satisfied. Dealing with demand to stop the illegal activities are not directly eliminates the risk of infringement, as these requirements can certainly be ignored.

Thus, the creation and use of the Program include significant exceptions to criminality (skills necessary defense or extreme necessity is equally possible), and therefore not a crime.

Evidence of the presence of circumstances excluding criminality will be:

- Explanation (testimony) of the author and the user program on the order of the program;
- The conclusion of an expert or specialist on the work of the program;
- Explanation (testimony) of persons engaged in downloading and distributing content and affected the result of the program;
- Documents on which the program was used (contracts with the owners of exclusive rights, and other documents from the owners of exclusive rights).

In the case of pre-investigation checks of the use of the Program, as well as in the case of a criminal case on this fact and in conducting the preliminary investigation of the criminal case, the investigator must establish the presence or absence of exceptions to criminality. In addition, as a person charged with a crime is entitled to protection, ie, right to present evidence of his innocence, the person against whom a criminal investigation started (or is pre-investigation checks) can independently declare the exceptions to his crime offenses, as well as provide the relevant evidence.
In accordance with paragraph 2 of Part 1 of Article 24 of the Code of Criminal Procedure criminal proceedings may be instituted, and excited a criminal case shall be terminated if it is determined that the act does not face an offense. To this rehabilitating grounds of criminal proceedings and criminal prosecution case is, when there are circumstances which exclude criminal act under Chapter 8 of the Criminal Code. Therefore, when determining those circumstances, the investigator must decide not to institute criminal proceedings on the creation or use of the Program, and if the criminal case - an order terminating the proceedings. Also, if the unskilled actions of the investigator will get the case to court, the court, setting the lack of evidence acquitted.
In this case, in accordance with Chapter 18 of the Code of Criminal Procedure person, criminal proceedings in respect of which terminated at rehabilitating grounds or acquitted, shall be compensated damages (both property and moral. The prosecutor on behalf of the state apologize, and if the information about illegal acts were circulated in the media, then at the request of the rehabilitated thus media must, within 30 days publish the information about rehabilitation.

Thus, in terms of civil and administrative law creation and use of the Program are fully legitimate activities. From the standpoint of criminal law, it is impossible to exclude the possibility of prosecution for the creation and use of the Program by virtue of the novelty and the imperfection of the legal institution of criminal responsibility for crimes in the sphere of computer information, the imperfections of the legal regulation of the Internet, the lack of criminal precedence on this issue. But any such prosecution should be terminated because of circumstances which exclude criminal act. And to prove such circumstances and qualifications do not represent a special difficulty.

Legal consultant:
Korabel Svetlana
Dmitry Terentyev

Date of 11/11/2011