The law is harsh, but the devil is not so terrible. A few quick notes on article 146

Having talked a little in the comments on one of the entries regarding the Lopukhov’s sentence, I found with interest that the fact that many Habr’s visitors are familiar with the mechanisms of holding individuals accountable for copyright infringement and related rights is superficial. To be honest, from the beginning I didn’t want to comment on the event connected with the ill-fated family, but at the same time it would be very nice to enlighten the public a little about the means and methods “thanks” to which they were condemned, and this example is very indicative, and therefore doubly interesting. I want to say right away that I sincerely wish all readers of this article to never find themselves in a situation in which you will be forced to apply your skills in practice. We will consider it a note for general development. Regarding the moral and ethical view of the issue,

Well, now get ready to read a lot. And if so many words bore you, then you can try to go straight to the end and get acquainted with my conclusions.

Attract or not attract?

A big resonance in the Internet environment was caused by a rather speculative statement that the Lopukhovs were judged as users. News sites that focus on this event, of course, want to increase the degree of intensity, saying "you can be the next." Let's look at the situation a little more. Part two of Article 146 of the Criminal Code of the Russian Federation informs us of the following disposition, which is considered criminal: “Illegal use of objects of copyright or related rights, as well as the acquisition, storage, transportation of counterfeit copies of works or phonograms for marketing purposes”. Here it is necessary to immediately note such an interesting feature of the article: like many other formulations in the law, there is some inaccuracy. It is obvious that the text says that the acquisition, storage and transportation for marketing purposes are criminal, at the same time, it is not clear whether “illegal use of copyright objects” should be implemented for marketing purposes. In fact, it shouldn’t be, which is somewhat vaguely specified in the Decree of the Plenum of the Supreme Court of the Russian Federation of April 26, 2007 N 14 (“On the practice of court consideration of criminal cases on violation of copyright, related, inventive and patent rights, as well as on illegal use of the trademark ”).

It should be noted right away that illegal use means the methods of disposing of copyrighted objects listed in part 2 of Article 1270 of the Civil Code of the Russian Federation, as well as similar articles from the section on related rights (Articles 1317, 1324, 1330, 1334, 1339). Of course, such an order should be carried out without a permit or legal right to do so. In particular, with regard to copyright, we can say that we will be criminals in the event of the commission of illegal “acts” in the form of reproduction (roughly speaking, creating a copy), distribution, rental and the like. In this case, any actions performed without the permission of the respective copyright holder, or even in violation of its prohibitions, will be illegal. The wording of Article 146 only clarifies that if a person carries, stores or buys copies, If you intend to sell them in the future, he can also be considered a violator. Thus, from the point of view of the law, a person who has already committed a violation of copyright or related rights, and who was about to do it and made the necessary preparations for this (for example, storage) can be held criminally liable. It is important to understand that somehow the crime will always be over, i.e. completely perfect: a person either immediately violates copyrights, or attempts to violate them, but at the same time performs the actions necessary for this violation, which are considered criminal in themselves. and going to do it and making the necessary preparations for this (for example, storage). It is important to understand that somehow the crime will always be over, i.e. completely perfect: a person either immediately violates copyrights, or attempts to violate them, but at the same time performs the actions necessary for this violation, which are considered criminal in themselves. and going to do it and making the necessary preparations for this (for example, storage). It is important to understand that somehow the crime will always be over, i.e. completely perfect: a person either immediately violates copyrights, or attempts to violate them, but at the same time performs the actions necessary for this violation, which are considered criminal in themselves.

How does this all concern us? First, let's immediately make a distinction between a pirated disc dealer and a regular Internet user. However ... hmm, it seems that this distinction is not. In the resolution I have already indicated, it is indicated that the sale of counterfeit copies of works or phonograms consists in their deliberate paid or gratuitous provision to other persons in any way (for example, by selling, renting, free distribution for advertising purposes, donating, posting works on the Internet). Thus, theoretically, by storing pirated programs on our disk, we too can become criminals ...

In fact, it’s too early to panic, since here you need to remember two more important factors:
1. Article 1273 of the Civil Code of the Russian Federation - Reproduction for personal purposes. The law openly tells us that for ourselves relatives, if we do not give them watch, play, listen, etc. other people, then we can make a copy of the work, and then store it on our disk.
2. A crime is only those actions that violated the rights in the amount of 100 thousand rubles (large size) and 1 million rubles (especially large size). I wrote more about this below.

In fact, all this carousel of laws and their interconnections leads us to one simple conclusion: it is theoretically possible to make a criminal any person who prefers to download programs, films and music instead of buying them. In practice, one shouldn’t worry too much: the reality of our life is such that, firstly, nobody needs simple “juveniles”, and secondly, it’s necessary to prove that they posted pirated content on the Internet (to prove that someone was just about to do it, and therefore, keeping “something there” was practically impossible and there are no precedents in such cases), and even in such a way that they violated rights at least in the amount of 100 thousand rubles (if the amount is less, then the user cannot be attracted even by administrative responsibility). Thus, returning to the original premises of the article: The Lopukhovs were attracted not just as users of torrents - they actively created distributions, that is, they were not even just “siders”, but “releases”. In this case, the family managed to jump over both obstacles protecting ordinary users at once: they did not use the works for personal purposes, and they did it so actively that in terms of the amount of damage (the size of the act) they ultimately exceeded the minimum amount required to initiate a criminal case.

Thus, if from an moral point of view the event can be interpreted differently, then from the point of view of the law everything is clear: the Lopukhovs violated copyrights (it’s not even necessary to tie the target of the sale, since they were engaged in obvious illegal distribution), causing damage to the owners in the amount of 38 billion rubles.

By the way, where does this amount come from? I will talk about this below.

To pay or not to pay?

Deciphering the concept of damage is not even in the Supreme Court ruling I cited above, but if we talk about the practice of its application, then everything is quite clear and logical. In this matter, the main problem is rather the ratio of damage to compensation. This is especially true in the light of the fact that many Khabrovsk citizens are firmly convinced that the 38 billion voiced by Lopukhov will now have to be paid. This is actually not the case.

According to the procedure for considering criminal cases under Article 146 of the Criminal Code of the Russian Federation, the participation of victims (copyright holders whose rights are violated) is provided for in them. In some cases, criminal cases may be instituted by the decision of the prosecutor without such persons, but this is rare. More often than not, in the case, one way or another, the rightholders appear, which the courts even sometimes forcibly call to participate in the proceedings. The victims of the trial give evidence, answer questions from the judge, state their demands. But, in any case, by default it is believed that these same victims do not want money from the defendant. Needless to say, they will not receive them in this situation?

Criminal proceedings in Russia, unlike the United States, are structured in such a way that criminals, by default, owe nothing to those who have suffered from their actions - they owe only to the state. The payment of such a debt can be expressed both in the form of restriction and imprisonment, and in the form of some other sanctions, for example, a fine. Regarding article 146, it is worth noting that in terms of copyright infringement (separately in the first part it also provides for plagiarism, that is, attribution of authorship, but it does not concern the scope of my article), it provides for 2 severity of the crime, on which possible framework punishment. The basic level is crimes, the total cost of copies of works or phonograms or rights to them has exceeded 100 thousand rubles or more. For such crimes are possible, including a fine of up to two hundred thousand rubles, or imprisonment for a term of up to two years (I will immediately explain that I do not indicate all the penalties provided for under this article), which corresponds to the crime of light gravity. The third part of the article tells us that crimes committed with aggravating circumstances (if the amount exceeded 1 million rubles, the crime was committed by a group of persons by prior conspiracy, etc.) can be punished more severely - with a fine of up to 500 thousand rubles, or imprisonment up to 6 years, and this is a crime of medium gravity. Here you also need to immediately pay attention to the fact that, if possible, to prove action in a group of persons, damage in the amount of 1 million is not necessary to prove - 100 thousand rubles already announced will be enough. or by deprivation of liberty for a term of up to two years (I’ll immediately explain that I do not indicate all the penalties provided for in this article), which corresponds to the crime of light gravity. The third part of the article tells us that crimes committed with aggravating circumstances (if the amount exceeded 1 million rubles, the crime was committed by a group of persons by prior conspiracy, etc.) can be punished more severely - with a fine of up to 500 thousand rubles, or imprisonment up to 6 years, and this is a crime of medium gravity. Here you also need to immediately pay attention to the fact that, if possible, to prove action in a group of persons, damage in the amount of 1 million is not necessary to prove - 100 thousand rubles already announced will be enough. or by deprivation of liberty for a term of up to two years (I’ll immediately explain that I do not indicate all the penalties provided for in this article), which corresponds to the crime of light gravity. The third part of the article tells us that crimes committed with aggravating circumstances (if the amount exceeded 1 million rubles, the crime was committed by a group of persons by prior conspiracy, etc.) can be punished more severely - with a fine of up to 500 thousand rubles, or imprisonment up to 6 years, and this is a crime of medium gravity. Here you also need to immediately pay attention to the fact that, if possible, to prove action in a group of persons, damage in the amount of 1 million is not necessary to prove - 100 thousand rubles already announced will be enough. provided for in this article, I do not indicate), which corresponds to the crime of light gravity. The third part of the article tells us that crimes committed with aggravating circumstances (if the amount exceeded 1 million rubles, the crime was committed by a group of persons by prior conspiracy, etc.) can be punished more severely - with a fine of up to 500 thousand rubles, or imprisonment up to 6 years, and this is a crime of medium gravity. Here you also need to immediately pay attention to the fact that, if possible, to prove action in a group of persons, damage in the amount of 1 million is not necessary to prove - 100 thousand rubles already announced will be enough. provided for in this article, I do not indicate), which corresponds to the crime of light gravity. The third part of the article tells us that crimes committed with aggravating circumstances (if the amount exceeded 1 million rubles, the crime was committed by a group of persons by prior conspiracy, etc.) can be punished more severely - with a fine of up to 500 thousand rubles, or imprisonment up to 6 years, and this is a crime of medium gravity. Here you also need to immediately pay attention to the fact that, if possible, to prove action in a group of persons, damage in the amount of 1 million is not necessary to prove - 100 thousand rubles already announced will be enough. committed with aggravating circumstances (if the amount exceeded 1 million rubles, the crime was committed by a group of persons by prior conspiracy, etc.) can be punished more severely - with a fine of up to 500 thousand rubles, or imprisonment up to 6 years, and this is a moderate crime . Here you also need to immediately pay attention to the fact that, if possible, to prove action in a group of persons, damage in the amount of 1 million is not necessary to prove - 100 thousand rubles already announced will be enough. committed with aggravating circumstances (if the amount exceeded 1 million rubles, the crime was committed by a group of persons by prior conspiracy, etc.) can be punished more severely - with a fine of up to 500 thousand rubles, or imprisonment up to 6 years, and this is a moderate crime . Here you also need to immediately pay attention to the fact that, if possible, to prove action in a group of persons, damage in the amount of 1 million is not necessary to prove - 100 thousand rubles already announced will be enough.

The concept given in the wording above actually corresponds to the concept of damage, since roughly the amount of the act recognized by the copyright holder itself can be called damage. And it is calculated on the basis of calculations made by people authorized by the criminal process: experts and specialists. Initially, this task rests with the expert, to whom the primary case materials fall. In fact, the expert poses the following questions: to establish whether the seized materials have signs of counterfeiting and to name the cost of legal “versions” of such materials. His work is called examination and it is on its basis that damage is calculated in most cases. Similar tasks can lie on the specialist, but already in a slightly different plane. If the expert, when assessing the value, has the right to request data from the copyright holders, or check their price lists without really checking the reliability of such information, the specialist expresses his personal opinion and the result of his actions will be the study. The difference between the actions of these two people is a topic for a separate article, which is unlikely to be interesting to the readers of the hub, another important thing here is that the copyright holder really has the opportunity to voice the amount of damage inflicted on him, moreover, to do this on his own or by “prompting” the expert, but such actions can be checked during the court session if the court considers the announced amount implausible (including at the request of the defendant). Incidentally, giving false testimony is a criminal offense. then the specialist expresses his personal opinion and the result of his actions will be the study. The difference between the actions of these two people is a topic for a separate article, which is unlikely to be interesting to the readers of the hub, another important thing here is that the copyright holder really has the opportunity to voice the amount of damage inflicted on him, moreover, to do this on his own or by “prompting” the expert, but such actions can be checked during the court session if the court considers the announced amount implausible (including at the request of the defendant). Incidentally, giving false testimony is a criminal offense. then the specialist expresses his personal opinion and the result of his actions will be the study. The difference between the actions of these two people is a topic for a separate article, which is unlikely to be interesting to the readers of the hub, another important thing here is that the copyright holder really has the opportunity to voice the amount of damage inflicted on him, moreover, to do this on his own or by “prompting” the expert, but such actions can be checked during the court session if the court considers the announced amount implausible (including at the request of the defendant). Incidentally, giving false testimony is a criminal offense. something else is important here: the copyright holder really has the opportunity to voice the amount of damage inflicted on him, and to do this both independently and by “prompting” the expert, but such actions can be checked during a court session if the court considers the amount announced to be implausible (including number at the request of the defendant). Incidentally, giving false testimony is a criminal offense. something else is important here: the copyright holder really has the opportunity to voice the amount of damage inflicted on him, and to do this both independently and by “prompting” the expert, but such actions can be checked during a court session if the court considers the amount announced to be implausible (including number at the request of the defendant). Incidentally, giving false testimony is a criminal offense.

In fact, the majority of large copyright holders have no reason to overestimate the amount of damage - the amount most often turns out to be either too miserable to try to drag it over the ears, or is already quite sufficient. I will give an example. We have a distribution on the tracker of a collection of several editions of Windows. There are 7 editions, for example, the total cost of which, for example, will be 20 thousand rubles. This edition was downloaded by 10 people. We multiply 20 thousand by 10 - we get 200 thousand. The criminal article is already there. Here, however, it must be understood that calculating damage tied to the number of downloads is not an axiom: it needs to be justified and proved, as, indeed, are many other formulations. We will talk about this a bit later.

In the meantime, back to our sheep. What damage is and how it is calculated, we roughly understood. And what about the copyright holders? They can set their requirements, but in a separate order. Such claims are called lawsuit or civil. The rightholder, declared in the framework of the criminal case as a victim, has the right to petition for the recovery of a certain amount of money from the offender or to make other claims. Here it should be noted right away that recognizing someone as a criminal does not mean recognizing the claims of the copyright holder. They are considered separately, and sometimes they can even be submitted to a separate case, which will be considered by a completely different court (already a civil one, not a criminal one). In addition, the declared amount is subject to separate consideration. From here, by the way, legs grow in the wording of Article 1301 of the Civil Code of the Russian Federation: the right holder, along with the use of other applicable methods of protection and measures of responsibility, is entitled to demand, at his choice, from the violator, instead of damages, payment of compensation: in the amount of from ten thousand rubles to five million rubles, determined at the discretion of the court; twice the cost of copies of the work or twice the cost of the right to use the work, determined on the basis of the price, which under comparable circumstances is usually charged for the lawful use of the work.

Based on the disposition of this article, the copyright holder has the right to independently make calculations, indicating an amount different from that presented in the criminal case file, and the court should consider the reasonableness of this amount. It should be borne in mind that the rightholder has the right to reduce the amount of claims at his discretion, just as the court can reduce them (but the court cannot raise them) - this is completely legal and justified. In addition, it is worth considering that neither damage nor compensation does not include any moral suffering for the copyright holder and is not calculated taking into account lost profits, can be based both on the cost of copies of works and on the cost of rights, and the sentence itself is objectively influenced only by classification of the case in the second or third part. Although subjectively for a judge, the difference between 1 million and 1 billion may matter, the reality is that the defendant will still not be given the maximum possible level of punishment. In this case, all the horror stories can be attributed purely to the copyright holder and his greed, and therefore, from a financial point of view, it is worthwhile to be afraid of claims, while in their absence we are not talking about returning money to private individuals. In the case of the Lopukhovs, we are witnessing a situation in which almost all the major rightholders of the lawsuit did not file a claim, and therefore the notorious 38 billion is a rather spherical thing and, in principle, if it were even 10 times larger, we would not see much difference. All the horror stories in this case can be attributed purely to the copyright holder and his greed, and therefore, from a financial point of view, you should be afraid of claims, while in their absence we are not talking about returning money to private individuals. In the case of the Lopukhovs, we are witnessing a situation in which almost all the major rightholders of the lawsuit did not file a claim, and therefore the notorious 38 billion is a rather spherical thing and, in principle, if it were even 10 times larger, we would not see much difference. In this case, all the horror stories can be attributed purely to the copyright holder and his greed, and therefore, from a financial point of view, it is worthwhile to be afraid of claims, while in their absence we are not talking about returning money to private individuals. In the case of the Lopukhovs, we are witnessing a situation in which almost all the major rightholders of the lawsuit did not file a claim, and therefore the notorious 38 billion is a rather spherical thing and, in principle, if it were even 10 times larger, we would not see much difference.

To be afraid or not to be afraid

Based on my text, some might have the impression that I want to present article 146 as some kind of insignificant nuisance. In fact, this is not so. Despite the fact that they will not shoot you, the verdict on it still means that the person committed the crime with all the ensuing consequences (for example, the verdict will be accompanied by the corresponding note “where necessary”). All salt is the practice of sentencing in such cases. Almost the vast majority of cases end with the imposition of suspended sentences, regardless of the severity and damage. Even without fines. It often happens that claims are not filed by copyright holders, or filed, but in the end the amounts are minimal. Based on the practice, judges prefer to significantly reduce the declared amounts, therefore, claims in the end turn out to be rather a purely nominal action. However, to give 20 thousand rubles for someone may be an impossible task. By the way, for this reason, the suspended sentence, in spite of the fact that it seems more terrible, actually turns out to be more humane for convicts than a fine.

But real sentences are quite rare, and they are in cases of relapse. And that is not always the case. Such cases, in their overwhelming number, relate to the processes of the so-called "hucksters" - to traders and, more rarely, to owners of outlets selling counterfeit discs. Before the ardor of such people is finally cooled, they can manage to participate in several lawsuits and each time get off with a suspended sentence.

Another important issue that many are probably interested in is the responsibility for seeding. As we have already established, the release is the undisputed goal of law enforcement if they intend to institute criminal proceedings for copyright infringement. But are siders “victims”? Purely technically - yes, formally they are also engaged in distribution. But if we talk about the practice of proof in such cases, which is already quite small, it turns out that it is extremely difficult to attract sider. If we consider criminal cases under article 146 within the framework of a 100-point system of evidence of complexity, then the cases of releases, perhaps, can be characterized by 70-80 points of complexity, while I would give all 100 points to a conditional case involving hiring siders. Judge for yourself: in this case, it is necessary not only to record the fact of violation and prove guilt, but also to determine the size of the act. In the latter case, everything is simple with the releases: we take the statistics of the tracker and count their distributions, but how to calculate the damage caused by a simple sider? He could give out an illegal copy to 1000 people, or he could give it to one, or he could not give it to anyone at all - it can be very difficult to prove the reliability of real numbers. And no one canceled the blame. We all remember the proverb “Ignorance of the law does not exempt from liability”, but it does not extend to blame. If a release can be considered a person who perfectly understands the tasks of his activity, and therefore has intent, then it’s more difficult to say about sider, especially if you take into account that a misunderstanding of the principle of work of torrents may not be an excuse at all, but a reality, based on human technical illiteracy. Thus, if, by virtue of the wording of article 146, siders are criminals, then in the light of other nuances this is not at all so obvious.

Now let's talk about my favorite topic: that "Russia is the birthplace of elephants." But we will start with Germany. In this wonderful country, plenty of cars driven by Soviet tanks, there is quite strict legislation in the field of copyright protection. For example, a person who owns copyright or has a power of attorney to protect such rights can calmly demand any person to show the contents of his laptop, and in case of refusal to contact the nearest police officer with such requirements. In Germany, ordinary torrent users can be prosecuted, not even cider, but just leechers. And their, by the way, with great pleasure will hand over their own providers. In another wonderful country - France, traveled by the tracks of German and American tanks, There is a rule of “Three warnings” (aka HADOPI law), addressed to ordinary users who violate copyright (by downloading pirated content). The wording of this rule allows not only on a mandatory basis to deprive residents of the country of access to the Internet, but also provides a documented basis for further filing of claims by copyright holders. It would not sound strange to you, but Russia in this regard has extremely liberal legislation. Here the rule “The severity of Russian laws is not compensated by the mandatory implementation of them” does not apply, since our legislation is more than soft, which, by the way, causes outrage of some international organizations. Just think: while a German resident grabbed by the hand will be forced to lay out a thick pile of money, in our country, nothing is threatened by ordinary users at all. The only loophole is a purely civil lawsuit, the evidence base for which the copyright holder will have to prove independently, and the amount of claims may be limited by a relatively small amount, which, among other things, the court can reduce. In fact, even if someone wanted to do such a "business", he would very quickly get burned out.

Instead of a conclusion

The procedure of prosecution and sentencing in cases of copyright infringement on the Internet is quite complicated and confusing. An attempt to talk about it invariably rests on the need to interpret many concepts and provide comments on various auxiliary mechanisms. How much the position of the copyright holder influences a particular case, what will happen if he does not want to be recognized as a victim, how the examinations are written and the evidence base is gathered, how the fact of violation is recorded and much more - all this is an occasion for writing a doctoral work in jurisprudence, but not the topic for a little article. Initially, I planned to write a short note with brief explanations, and as a result I presented a whole report of 5 and a half pages of a text editor. And this despite that some other person with a legal education may well write a cardinally opposite note on the conclusions. And he will be right in his own way. I do not pretend to be absolutely correct in my conclusions, but, nevertheless, I fulfilled my task: I outlined a general outline of the main problem points on this issue.

If you try to summarize all of the above by me, you can express the result in the form of three theses:
1. Criminal prosecution under article 146 is such a persecution that it is impossible to conduct the defendant without real guilt. It is extremely difficult, if not impossible, to take an innocent person and “sign” him under this article.
2. Ordinary users can sleep almost peacefully: they are unlikely to be prosecuted even if they are siders, and the civilian is too complicated and disadvantageous for someone to decide to do this.
3. Damage in a criminal case is not the amount that must be paid. It is possible that even a person recognized as a criminal will not pay a dime at all and will only get off with a suspended sentence.

Thank you all for your attention.

PS The lawsuit against the Lopukhovs, among other things, is not even a precedent. In judicial practice, at least one case has already been considered in relation to the “release”.
PPS Thanks to user msuhanov for pointing out some inaccuracies in the article.