Software Piracy / Legal Action / Rights

Greetings for the month!  Let us talk about software piracy and what it means?  The issue of software raids, which is much talked-about can be looked at from two perspectives; first from the point of view of an IP owner and enforcer, who wants to ensure absolute protection of their IP rights and the other being from the point of view of Customer – the raided party, to whom such treatment seems to be preferential and biased. The main reasons behind copyright piracy are poor enforcement and lack of awareness on copyright matters.

According to NASSCOM, software piracy involves the use, reproduction or distribution without having received the express permission of the Software Author. Software piracy comes in four common forms –

The first is end user piracy, and it occurs when users of software install the software on more machines than they are entitled to under their license agreements.

The second is hard disk loading, and it occurs when Computer Dealer - Technicians install illegal copies of software onto computers prior to their sale.

The third is software counterfeiting, and it involves the illegal reproduction, and subsequent sale of software in a form that is nearly identical to the original product.

The fourth is Internet piracy, and it occurs when individuals place unauthorized copies of software on the Internet for download.

Excerpts from Information Technology Act 2000:

76. Confiscation:

Any computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, in respect of which any provision of this act rules, orders or regulations made thereunder has been or is being contravened, shall be liable to confiscation:

Provided that where it is established to the satisfaction of the court adjudicating the confiscation that  the person  in  whose  possession,  power  or control  of  any such  computer,  computer system,  floppies,  compact disks,  tape  drives or  any  other accessories  relating  thereto is  found  is  not responsible  for  the contravention  of  the provisions  of  this Act,  rules,  orders or  regulations  made  thereunder,  the court  may,  instead of  making  an order  for  confiscation of  such  computer, computer  system, floppies, compact disks, tape drives or any other accessories related thereto, make such other order authorised by this Act against the person contravening of the provisions of this Act, rules, orders or regulations made thereunder as it may think fit.

78.  Power to investigate offences:

Notwithstanding anything contained in the Code of Criminal Procedure, 1973, a police officer not below the rank of Deputy Superintendent of Police shall investigate any offence under this Act.

Punishment

Under the Indian Copyright Act, a software pirate can be tried under both civil and criminal law. The minimum jail term for software copyright infringement is seven days, and the maximum jail term is three years. Statutory fines range from a minimum of 50,000 to a maximum of 200,000 Rupees.

Rights and Remedies

Sometimes dealers / end users get call from yyy, xxx etc. claiming that they represent zzz software company seeking information about number of computers, list of software on it etc. Here, one may simply tell them verbally (on phone) that we don’t recognize them, and they should write letter explaining the basis on which they wish to get this information; and also attach copy of authorisation received from the zzz software vendor.

Sometime dealers / end users get Notice from a Lawyer / Advocate claiming they represent zzz software vendor etc. and they ask for information (PC, software etc.). There is no legal compulsion to reply to them either in writing or verbally. If one feels he has proper licenses and wishes to reply, he can hire a lawyer who would tell them that they are not obliged to share this information with anybody except through a court order.

If a bunch of people come and seek to conduct raid on the house/office, the person may allow them to do it provided they are accompanied by a Police officer of the DSP rank or above and they have original order from a court which allows them to do search and seizure. These requirements are there in IT Act 2000 section 76 and 78. If either of condition is not fulfilled one may not allow them the entry or ask them to leave and/or call 100 and inform the police about these people.

Sometimes to avoid this kind of ugly or heated discussions or unnecessary media attention some people decide to go easy and try to grease their palms, but, the problem does not end here and many a times these people end up taking lot of money on the pretext of doing an out-of-court settlement.

Thus in this day and age of widespread IT and information access, one should always use Licensed Software over pirated as it gives peace of mind to you because majority of pirated software are prone to malware and in today’s Ransomware world it is very risky to use such vulnerable systems.

This is my personal view every one can decide their own policy. Please check current legal rules from authorised Legal adviser .