The story of one "violation" of copyright. Part 1

    In this post, I will talk about a real case of criminal prosecution under article 146 of the Criminal Code of the Russian Federation, and along with 273 (copyright violation and the creation / distribution / use of malware). I was a direct participant in this story, first as an accused, and then as a defendant.

    It all started in 2007. Internet in our region was slow and expensive (64 Kbps for 1,100 rubles / month and 128 Kbps for 2,500 rubles / month), there was no normal competition for the monopoly provider. On traffic tariffs, the price for 1 megabyte was around 2-3 rubles. However, the provider had an internal network without restrictions on speed and traffic - the Intranet. A number of services were deployed on this network, some supported by the provider, some by users. In our history, there is one provider service - a local file hosting service and one user service - a fairly popular information portal.

    Unknown persons posted distributions of a number of products of Adobe, Autodesk, ASCON, Microsoft on a file hosting service. A user under the pseudonym Peter posted on the information portal descriptions of these products and links to file hosting. Visitors to the portal were delighted to see fresh software on the Intranet and actively voted for Peter’s user rating. As a result, Peter became the leader in the rating for two consecutive months, for which he received invitation tickets to the entertainment club twice. It is unclear what was pushing Peter to write this news, maybe he was hoping to get money for it, maybe he wanted to get two kilograms of good sausage, or maybe he thought it was good to share information, because information is not an apple :)

    If you have an apple and I have an apple, and if we exchange these apples, then you and I have one apple left. And if you have an idea and I have an idea and we exchange ideas, then each of us will have two ideas.

    George Bernard Shaw

    Only now nightclubs didn’t attract Peter, so he simply gave tickets to his friends.

    This all happened in the spring of 2007, and in the summer of 2007, representatives of the Ministry of Internal Affairs arrived at Peter’s place of residence, namely: an investigator of the district police department, three operatives of department K, two witnesses. Official certificates and a court order were presented to search the apartment. The court order stated that Peter was suspected of distributing several software products using the Intranet network, which caused damage in the amount of 112 thousand rubles. (Article 146, Clause 2 of the Criminal Code of the Russian Federation). Peter voluntarily provided all the computer equipment and storage media in the apartment. The system unit, keyboard, mouse and a pack of CDs were seized, for which a protocol was drawn up and signed by all those present. Then we drove to the police department, where the paperwork began.

    There was a question about a lawyer. Peter had one good, familiar lawyer who, like Peter, was fond of computers and StarCraft. Naturally, there was no doubt in choosing a lawyer. The investigation, of course, did not like the option of his lawyer, however, Peter still called the lawyer. The lawyer recommended to refuse to testify on the basis of Art. 51 of the Constitution of the Russian Federation until the content of the criminal case becomes known. The investigator naturally recommended against using Art. 51, and give evidence. Peter, reasoning logically, given that he did not know what the investigation had at his disposal, refused to testify.

    Ultimately, cooperation with the investigation should have ended in a special order. This means that the accused pleads guilty, the court does not analyze all the evidence, and immediately makes a decision, more lenient than usual. This is convenient for the investigation if it knows that there are some flaws in the case, or simply does not want to spend extra time, and it is convenient for the accused if he knows that there is a lot of evidence against him.

    After that, an operative of department K came with Peter to the house. Along the way, he convinced that it was necessary to cooperate with the investigation, told that other people, faced with department K, went to cooperate, easily got off, got a good job, etc. At the same time, he called specific names (more precisely, nicknames on the network). He also said that the lawyer was only interested in money and quickly get rid of this case. Peter listened attentively to all this, but didn’t make a concrete decision; he told the operative that he would think it over, perhaps he would cooperate.

    The next couple of days, Peter talked with people who came across department K. With those whom the investigator called, as well as those whom he knew. Everything was far from as rosy as the operative described. People received suspended sentences and fines; they did not receive any good work. In general, everything was a lie. The investigation simply wanted to quickly close the case. Now Peter, without any doubt, has categorically refused to cooperate with the investigation, which practically declared the Cold War.

    The investigator was a man who wasted no words. He simply explained: “By your decision you spoil our life, so we will spoil your life.” The operative, it seems, began to go crazy: anger, aggression, the floods of threats. Fortunately, Peter quickly got used to ignoring him. At that time, Peter finished the penultimate course of study, worked as a laboratory assistant at the place of study, and in the near future he was going to get a job with a cable television provider, who was planning to start providing Internet access. The investigation did everything possible to ruin Peter’s life. At the place of study, they wrote letters, reported that he was a criminal, asked to work with students to reduce crime. There were personal repeated visits to the leadership of the educational institution, in which they asked: “Why have you still not expelled the perpetrator?” Why is the criminal still working as a laboratory assistant for you? ”, They threatened with computer checks.

    Peter was lucky, the leadership sided with him: “We will not expel him, he has excellent academic performance. We will not fire him, he does an excellent job. Carry out checks, everything is clean with us. ” Teachers later said that the operative behaved like a patient, was very embittered, and was frustrated by threats. After some time, Peter resigned of his own will as a laboratory assistant and got a job with a provider. He combined the last course of study with this work. An operative also appeared at the new place of work, but again the leadership took the side of Peter. Of course, Peter was asked to monitor the licensed cleanliness of the software used in the work and not to expose the company.

    The investigation, meanwhile, was actively interrogating Peter’s entire circle, friends, relatives, and also other users of the Intranet who could know him. In addition to a bunch of positive characteristics, the investigation did not find anything. Peter did not transmit or install any programs to anyone, no one saw Peter distributing any software. After a couple of months, an examination of the system unit seized from Peter was ready. The amount of damage increased by 413 thousand rubles, respectively, another episode of the prosecution appeared under article 146, paragraph 3c of the Criminal Code of the Russian Federation - copyright infringement on an especially large scale, which threatens up to 6 years. Also, programs such as crack and keygen were classified as malware and a third episode of the prosecution was added under article 273, paragraph 1 of the Criminal Code of the Russian Federation - the use and distribution of malware. The investigator kept his word and worked wonderfully :) Now Peter’s crime was qualified as serious, and in total he threatened up to 9 years. In reality, this would be a suspended sentence, and Peter was ready to receive it.

    The examination was largely inadequate. For example, an expert called a certain distribution kit counterfeit on the basis of only the fact that it was downloaded from the network, and she learned about the fact of the jump from the investigation. Another expert compared the file allegedly provided by the investigation with the file on Peter’s computer only by name and size. And the expert did not provide this file with the investigation at all. There were many such moments in the examination. Peter and the lawyer put additional clarifying questions to the expert, the investigator removed half of the questions, explaining that they were answered. The expert gave answers similar to the examination to other questions.

    Peter’s lawyer, of course, understood that it would hardly succeed in “bombing” the examination in court with the words of him or Peter, so they turned to two common acquaintances who could act as experts in court. These two acquaintances were declared as witnesses of the defense, and Peter and the lawyer were actively preparing for the trial. Here, the investigation again used their dirty tricks, defense witnesses were brazenly pulled out of the workplace and questioned, and the interrogation protocols were issued retroactively. Thus, the investigation tried to find out what the defense has, what other points to pay attention to in a criminal case. Based on the results of their interrogation, the expert was asked a few more clarifying questions, but this did not add adequacy to the materials of the criminal case :)

    After that, the investigator finally got ready to transfer the case to court. Peter and his lawyer finally got acquainted with the materials of the criminal case. The case was initiated on the basis of the report of the operative himself, screenshots of posts on the information portal, files on the file hosting service, a disk with distributions downloaded from these links were presented. Also, the provider was requested data on links to the file hosting, data on Peter’s traffic. The data provided by the provider was, fortunately, reliable. From the heap of links to the file hosting in the request, only 4 files were posted by Peter, these were patches and crack. In the details of the provider’s services, it was clear that Peter had consumed less than 1 GB of traffic all the time, which is much less than the total distribution volume. These data were obtained by department K even before the initiation of the criminal case, it was on the basis of these data that Peter became a suspect in the distribution of counterfeit software; it was on the basis of these data that the judge wrote a resolution to search the apartment. The situation turned out to be delusional: a criminal case was opened on the basis of evidence that testified in favor of the suspect :) Unfortunately, in Russia this is in the order of things, the expert’s computer skills barely reach the advanced user, to say nothing of law enforcement agencies ... However, the charges are for the rest of the episodes was more real, some software was really installed on the computer, which could be considered counterfeit.

    Peter and the lawyer decided to fight in full force and took advantage of the right to a panel of three judges, because the crime was qualified as serious. Familiar lawyers called the lawyer a suicide, the investigator said that "you will have a massacre there," but they were already ready for the massacre. The board of three judges, on the one hand, gives hope for a more thorough consideration of the case, on the other hand it is an unnecessary creation of problems for the court, usually they do not use this right.

    After that, the investigator repeatedly (10 or more times) tried to refer the case to the prosecutor for sending to court. Each time, the prosecutor returned the case for one reason or another. After returning, the investigator interrogated another Peter’s acquaintance or wrote a pack of some pieces of paper and tried to send the case (which had already grown to 4 volumes) again. All this continued until October 2008.

    To be continued...

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