About the dangers of copyright and the benefits of licensed programs

    In this article we will talk about the main legal aspects of information security. In other words, about how not to break the law, not to lose business and not to go to jail.


    Cleverness test. Is writing this picture to the memory of your computer legitimate? Who wrote it there? Is she a work of art? Is it the result of intellectual activity? Who is its copyright holder? How can you find out all this for sure? How do you characterize the one who invented all this?

    The legislation of the Russian Federation in the field of intellectual rights has caused us complex feelings ... Its basis is the Civil Codeas amended in 2008. Unfortunately, not all the leaders of Russian organizations read it carefully. And of those who read, not everyone believed their eyes. In the course of our study, we found a low level of legal literacy in the field of IT: people often do not know how to act in order not to be guilty. However, in our EU the situation around copyright does not develop in the best way :(

    In order to survive, you need to know the law well. It helps a lot against you know who. We will provide a rigorous legal analysis of the problem with regard to the activities of organizations that are residents of the Russian Federation.

    First of all, There are no "licensed" and "unlicensed" programs from a legal point of view. Remember the term used in the legislation of the Russian Federation -“Result of intellectual activity” (RID). Examples of read - computer program (.js), music (.mp3), video (.flv), picture (.jpg), literary text (.htm). There are other types of RID - from the brand to the design of the chair. Each RID alone cannot be “licensed” or “unlicensed”. But you can either use it or you cannot. This depends, in particular, on the availability of a document authorizing the use of this RID. An example of use - you write RID in computer memory. To use multiple readings, you need written permission for each of them. Without the explicit permission of the copyright holder, the Civil Code of the Russian Federation prohibits you from using any RID in any way.

    There are rare exceptions. For example, you have the right to play some sad music at a funeral without permission. But this is little comfort. Such exceptions do not change the essence of the matter.

    Who benefits from this?


    Why do you think the law was passed prohibiting the use of any read-only information in the form of copying them to computer memory from January 1, 2008 without the written permission of the copyright holder? We do not know. What impact did this have on the economy and standard of living? Questions of this kind are beyond the scope of this article. We only note that the norms of the Civil Code of the Russian Federation are a clear-cut example of copyright that clearly illustrates its strange essence - the illegality of copying RID without permission. Similar laws have been adopted in recent years throughout the Earth.

    Due to such unanimity of the inhabitants of the Earth regarding copyright, it is difficult to believe that these laws are adopted secretly and illegitimately. Otherwise, one would have to admit that someone outsider began to deceive the population of the entire planet, rigging the elections in almost all countries on all continents. But who could it be? :) I don’t want to think that the story we told in the first issue of the blog may not be fiction, but a terrible truth. However, what the hell is not joking? ..

    In any case, in that issue we tried, partly in allegorical form, to explain the reasons for the deplorable state of things in many areas of human activity.

    Is it possible to agree orally?


    So, if the use of RID is not explicitly permitted, then it is prohibited. It is believed that each RID has a copyright holder. Only he can give you the right to use his RID - to the extent specified by the contract (such a contract is called a license). The contract must be in writing. Non-compliance with the written form entails the invalidity of the contract. The oral form in the Russian Federation is allowed only for the granting of the rights to use RID to periodicals - there are no other exceptions. In other cases, the copyright holder is not entitledverbally give you the right to use your RID - even if you want it to. The fact is that the rule of law is prior to civil contracts. Writing is required. And the absence of a ban is not considered permission.

    Oddly enough, the same law allows the copyright holder to publish his RID in a public place - for example, on the Internet. How is this consistent with the mandatory written contract? Very simple: read the GC. It does not provide you with the right to use RID on the basis of the fact that RID is published on the Internet or in another public place. Let the copyright holder publish its RID and really want you to use it at your discretion. But the desire of the copyright holder is not enough: you still do not have the right to do so. Need a written contract. Your lack of the right to use the RID does not violate the right of the copyright holder to publish this RID anytime - is it not logical? :)

    Imagine yourself in the place of the copyright holder. You have written a computer program, a wise saying or an entire book and want to distribute or sell your RID in a public place - in a store, on the street, etc. In the form of a sheet of paper, a CD or a brochure. In order to provide other people with the right to freely use your RID (that is, the information part of your work, and not its material medium), you will have to conclude written agreements. Granting the right to use RID orally is against the law. The copyright holder may use the RID belonging to him not in any way, but "in any way that does not contradict the law." And the law requires a written contract. Its text must be compiled in accordance with the requirements of the law and containclear and strictly defined conditions for granting the right to use RIA for both parties. The right holder is not entitled to grant the right to use RID without observing these requirements or orally. If the contract was oral or it was not at all, then the events of granting the right did not happen. In the case of a program or book written by you, all persons who have received media from you with RID without a license agreement have, at best, the right to use the media. For example, they can legally use a CD as a stand for a cup of coffee. Any other media, respectively.

    Some people, most likely, even without a contract, will take your RID from you and begin to use it, deciding that they have the right to do so. From the point of view of common sense - it is logical. But, unfortunately, they will not have any document confirming this right.

    How to conclude a contract with many unknowns?


    If you find in your office the fact of using someone else’s RID that was loaded into the computer’s memory as a result of your actions, and you cannot provide documentary evidence of the legitimacy of its use, you are in trouble.

    But concluding an agreement with the copyright holder is not always simple and not always possible. First, try to find him among several billion people. Secondly, try to get evidence from him before concluding the contract that he is the copyright holder. Do you know that under the law you can obtain the status of a copyright holder without any documents? Yes, that's right. Given this circumstance, it will be difficult for you to make sure that in front of you is the copyright holder of the specific RID in question.

    A simple example. Do you know who is the copyright holder of a certain file “medvedev.jpeg”, which is a portrait of the head of state? Not? We don’t know either. If LLC “NNN” offers you to conclude an agreement giving you the right to write this RID to the memory of your computer, will you agree? Not? Is logical. And to which legal entity do the rights to the sequence of bytes “53, 4F, 4E, 59” belong? Do not know? And this, by the way, is a very important sequence. Do you have the right to write this sequence to your computer? Try on the basis of the Civil Code to give an answer to this question.

    Note that the Internet is big. The rights to use a significant part of the RIA located in it are regulated by civil contracts in foreign languages. Such contracts are void in the Russian Federation. Have you ever concluded a license agreement in English without its Russian equivalent? What do you think, to what extent are your rights protected in such a treaty in the Russian Federation?

    When is de facto use not de jure use?


    Now - the most interesting. Your recording of someone else’s RID in memory is not always considered to be its use. Under Russian law, the same thing you do — writing RIDs to computer memory — can be considered using RIDs, but it can also be ignored. And it does not depend on you. And it does not depend on the content of the RID. And it does not depend on the computer. It depends, first of all, on the text of documents drawn up by other people and, as a rule, unknown to you. It may also depend on the internal desire of the copyright holder, not expressed in any documents. By the way, in many cases the law leaves the right holder with the right to change his desire retroactively.

    So, if the copyright holder has concluded a license agreement with someone in which he has granted the right to publish his or her RID, then, as mentioned above, you do not have the right to use this RID. But at the same time you have the right to write it to computer memory! This is not considered use. You do not have permission to use the RID, but it is not required: you do not violate the law because you are not committing a use event. But if nothing similar is said in the contract between third parties, then you do not have the right to write this READ into computer memory! This is considered use.

    We repeat that we do not know why all this was invented :)

    As a rule, you do not have the opportunity to find out what the contents of the contract between third parties are. Thus,the legitimacy or illegality of your action depends entirely on the legitimacy of the actions of others.

    By the way, if the court recognizes the unlawfulness of the actions of third parties committed by them in the past, then your actions will also be recognized as inappropriate.

    We emphasize that there can be no agreement at all if the RID was published directly by its copyright holder. In this case, is it legitimate for you to write this RID in memory? Formally, yes. But how do you know about this and, most importantly, what will be your evidence of the legitimacy of your actions? And how do you know that the copyright holder has changed his mind if this happens?

    The law does not give the right to individuals or legal entities to make decisions independentlyabout the legality or illegality of the use of any other RID. Arguments like “I thought it was legitimate”, “if there is no document on illegality, then you can use it” and “everyone does it” will not help. The legitimacy of the use of RID must be documented and written.

    Please note that at the time of the operation of copying from the Internet an arbitrary file (for example, this surreal work) to the memory of your computer, you by definition do not have information about the contents of this file, about its copyright holder and about the texts of the contracts of this copyright holder with third parties. And after you have made a record in memory, the action is considered perfect. But even then - do you have the opportunity to find out if it was lawfully done by you? Do you have the opportunity to find out who is the copyright holder of this RID? If not, how can you comply with the law?

    By the way, the indicated exception, when writing to memory is not considered to be using RID, is valid only if this RID is a work. Terms such as “works of literature, science and art”, “phonograms”, “company names” or “trademarks” are legally different. If some cases of storing works are not considered to be use, this does not mean that the same applies, for example, to brand names. Try to re-read the GC again and clearly answer the question: do you have the right to write the byte sequence “53, 4F, 4E, 59” into the memory of your or someone else's computer? Is this sequence a work?

    In order for your record in the computer memory of someone else’s RID not to be considered its use, the law requires that one more condition be met. The record should be “temporary” and “constitute an integral and essential part of the technological process, with the sole purpose of the lawful use of the record or the lawful bringing of the work to the public.” By a work is meant the corresponding RID. This is where the legal nightmare begins.

    Firstly, this wording does not explain how the “ subject of law ” can be “not the goal,”but "technological process." Is the printing process itself a legitimate goal? Is the technological process of writing bytes to computer memory a legitimate target? Is the technological process for transmitting packets over the IP protocol a legitimate goal?

    The legitimacy of use in any case is determined not by the "technological process", but by the copyright holder. The use of RIA is legal if and only if the rightholder has granted this right to another person in the form established by law in writing and indicating the conditions of use. According to the law, there is no “technological process" replacing a license agreement with the copyright holder.

    Secondly, it is unclear what “legitimate use of the record” is (not RID, namely the record): this concept of the Civil Code does not explain. Is a record valid if it is part of a process whose purpose is its legitimate use? This is pretty weird.

    Thirdly, you usually do not have the opportunity to find out whether the named “process goal” of third parties is unique or not unique. Note that the majority of “technological processes” along with the goal of “communicating” has at least one other legally significant goal: making a profit.

    And finally, the wording “temporary recording” is legally incorrect. It can be interpreted as you like. Mean year? Day? Minute? Decade? Can you imagine a temporary bringing to the public ??:) How can I directively cancel a held record in memory after some time ?? As far as we know, the information brought to the public was subsequently legally destroyed only in the novel "1984". If you know other literary examples, please let us know.

    Further more


    Let us clarify some other important details of Russian law.

    The license agreement for the provision of the right to use RIA is also RIA. The Civil Code does not include it in an exhaustive list of objects that are not protected by copyright. To use a license agreement (giving the right, for example, to use a text editor), you also need permission from its copyright holder. In order not to create an endless sequence of agreements permitting each other, the license agreement, apparently, should contain an indication of the right to use oneself :)

    The prohibition of writing RID to the computer’s memory without first obtaining permission is a prohibition relating to you and your action, and not to the ownership of this computer. The operation of copying RID into computer memory without the permission of the copyright holder is considered illegal, no matter how you perform it - from your computer to someone else’s, from someone else’s to yours, from your to yours, from someone else’s to another’s; over the Internet or otherwise. The physical type of memory (RAM, HDD, flash, etc.) does not matter. But, recall, the same operation is considered legal if it is not considered to be using RID :)

    The Civil Code does not provide for the possibility of "advance" copying to memory or other use of RID. If you do not have permission at the time of the action with the RID, which means use, this means that your action is illegal, even if you expect to get permission sometime later. First, permission, then use.

    Having concluded the contract, you further have the right to use the RIA only in the ways that are established by the contract.For example, a copyright holder may allow you to perform a one-time operation of copying a specific RID (copyright holder logo) from your computer’s memory to your computer’s memory through the global network from January 1, 2012, from 4 p.m. to 5 p.m. But only on condition that your computer is green. By the way, unless otherwise specified in the contract, you will be required to submit a report on the execution of this operation to the copyright holder . If the contract does not directly relieve you of the obligation to provide reports on the use of RIAs, you must do this in all cases - it is written in the Civil Code. How detailed reports should be and whether their oral form is allowed is not specified.

    Unlike images, books, films, and some other types of read, a computer program is a special type of read, for the use of which a written contract is not required by law. Instead, the copyright holder may unilaterally state the terms of the contract “on a copy of the acquired program” or on its packaging. The law treats the beginning of your use of such a program as your conclusion of this agreement and your obligation to fulfill it.In this case, the electronic form of the text “on the copy of the program” is not excluded. Note that in this case, there may theoretically be differences between the text that you have and the text that the copyright holder will bring to the court in case of conflict: the electronic text “on the copy of the program” is easy to change. In this case, the court is likely to make a decision in favor of the copyright holder, considering that you have forged the contract. The fact is that the law does not provide any other evidence of the legality of your use of RID, except for the explicit permission of the copyright holder. This means that he has a de facto priority in resolving contentious issues.

    In addition to providing you with certain rights limited by a license agreement, the copyright holder may assign to you all his rights to the RIA. Unlike a license agreement, this is called an agreement on the alienation of exclusive rights. Of course, in this case, a written form of the contract is required, and the oral form entails its invalidity. But if everything is done by law, you become the copyright holder and get the right to sue other members of the company in cases of unlawful use of your RID - with the requirement of compensation for violation of your rights, of course. To facilitate the detection of such cases, you can embed appropriate algorithms in the RID. You become a member of the copyright economy.

    Agreements on the transfer of intellectual property rights can be either onerous or gratuitous. The legislation requires their written conclusion, but leaves to the discretion of the parties any material issues. For example, you can write a book, picture, or computer program called Dark Squareand as the copyright holder to conclude a license agreement for its use for a million arbitrary units per month - it does not have to be money. But if you nevertheless indicate exactly the money in the contract, then the corresponding payments for the right to use the RID will be completely legal. For any amount. And this will not prevent you from the same RID (or its “abridged version”) to be provided to another person for free, indicating the corresponding condition in the contract. In other words, the Civil Code does not establish a connection between intellectual rights and any material values ​​and objects. The thing is by itself, RID is by itself. The material value of the RID is determined only by the copyright holder.

    Do you already understand the essence and meaning of copyright? :)

    The law gives private individuals some exemptions, allowing the use of many types of RID content (music, texts, pictures, videos, etc.) without the permission of the copyright holder - but only for personal purposes and with payment of compensation to the copyright holder. However, it is better not to do it without necessity: since 2010 it has been prohibited. And most importantly, no exemptions apply to computer programs: in this area, the law establishes general rules for both individuals and organizations. In addition, the Civil Code does not stipulate the amount of remuneration. It remains unclear how the statutory remuneration condition complies with the norm of the same law on the non-compulsory provision of rights to RIA and the uncertainty of monetary amounts.

    Buying a computer device does not give the right to use the program located in it


    From the point of view of the Civil Code of the Russian Federation, the right to use RIA refers to the so-called intellectual rights. They do not depend on ownership of the material carrier (thing) in which the RID is expressed. Having bought a thing, you do not thereby acquire intellectual rights to the RID expressed in this thing, as it was before. The transfer of ownership of a thing does not entail the transfer or provision of intellectual rights to the RID expressed in this thing.Therefore, the argument that your thing belongs to you will not be considered in court as an argument in favor of your right to use the RID expressed in this thing. We repeat: the only document proving your right to use someone else’s RID is a license agreement between you and the copyright holder. The assumption that the copyright holder “does not object” to your use of the RID will certainly not help, even if he does not object: the Civil Code directly says that the absence of a ban on the part of the copyright holder is not a permission.

    The norm of the law that the transfer of ownership of a thing does not entail the provision of intellectual rights to the appropriate RID is of particular importance for the IT industry. As applied to a computer device, this rule means that transfer of ownership of such a device to you does not entail the granting of intellectual rights to the software expressed in this device to you. In other words, your purchase of a computer does not mean giving you the right to use any programs located in it. Without the permission of the copyright holders, their use is prohibited. This applies to all computer programs without exception. GK makes no exceptions for the BIOS of the motherboard, nor for flashing the mobile device, nor for the script in the browser. Your guessthat the programs entered the computer lawfully does not give you the right to use them. If people had the right to use information only on the basis of their assumptions, as it was in the good old days, there would be no trace of copyright. But the fact of the matter is that the law does not give anyone such a right.


    It's never too late to recall forgotten methods of counting with a pen and paper. It is reliable and safe.

    From a legal point of view, a computer program is “a collection of data and commands designed for the functioning of computers and other computer devices in order to obtain a certain result”.Such a broad formulation includes almost any software of any computer devices - motherboards, calculators, industrial CNC machines, musical synthesizers, video cameras, cameras, medical devices, smartphones, tablets, laptops, phones, video monitors, watches, timers, built-in computers vehicles and household appliances, industrial PLCs, traffic lights, distributed server systems, etc. Computer devices, for example, are a standard keyboard and mouse - and at the same time, the entire computer system that they can be part of falls under this definition. A computer device is considered to be the air traffic control panel as a whole, as well as each individual board. In other words, the law does not stipulate the scope of application of computer devices, nor their appearance,the same norms of the right to use RIA.

    By the way, the “other computer devices” specified in the law do not have to be electronic. The rule of law applies to mechanical, optical, and any other architectures to the same extent.

    But analog electronic devices do not fall under the law in this case. The fact is that the program cannot be executed in them. Such devices include, for example, an audio amplifier and an analog tape recorder. But digital audio equipment is already a computer device, because it executes or can execute “a combination of data and commands designed to function in order to obtain a specific result”.

    How concepts expand


    Separately, we consider the legality of the storage of RID. Is storage considered use? Suppose you have a media or computer device in your office that contains the program. Suppose the media or device is your property, but you do not have a license agreement to use this program. Can it be considered illegal to simply store such media or devices in your office? Yes maybe. The fact is that the legislation of the Russian Federation does not have an exhaustive definition of the term “use of RIA”. In the Civil Code are only a few, particular examples of the use of RID (in particular, the recording of RID in the computer's memory). From a legal point of view, this means the legitimacy of a broad interpretation of the term.Nothing prevents either the court or the copyright holder from using RID to store it in any thing that belongs to you, which acts as a material carrier. In this regard, it is risky to use a carrier or device without a license even as a coffee stand.

    Attention! The lack of a complete list of methods of using RID and the legitimate possibility of an expanded interpretation of the concept of "use" is of great importance. Your use of a textbook on programming in your work as a programmer can be regarded by the court as the use of REE. Your use of the Russian language reference book in your publishing project can also be regarded as using RID. Your use of a fashion magazine with a photo or drawing of a model of clothing in your jacket manufacturing business can also be called using RID. Listening to an information security course in order to create a secure computer network - this can also be called the use of RID. A lecture is a pronounced read. A work of architecture is also a reed. Think what will happen

    The wording of the Civil Code “using the work ... is considered, in particular: ...” leaves great opportunities for making decisions about what else can be used. By the way, pay attention to the fact that even such an incomplete wording applies only to works, and not to all RID.

    For completeness of impressions, we add that “the audiovisual displays generated by the program” are considered part of it, i.e. are part of the RID of the author of the computer program. From a legal point of view, this formulation does not cover some, but all “generated mappings”. This applies to the program of your camcorder, and to the graphic editor, and to the text editor too. This applies to any program.

    The future has already come. In Russia, this happened on January 1, 2008. In other countries, progress is at about the same pace.

    Draw conclusions, ladies and gentlemen.

    * * *

    To be continued ...

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