“Adam had it easy. When he said a good thing, he knew nobody had said it before.”
Mark Twain
Copyright is one of the core institutions of intellectual property law. As is well known, the personal, non-property right to a creative work is called “Urheberrecht” (author’s right) in continental Europe, and “Copyright” in the Anglo-American legal tradition. Anglo-American Copyright is primarily commercial in nature and is designed to protect economic investment rather than the author’s personal, non-property right in the work. The continental European concept of copyright, by contrast, is personal in nature, centered on the creative individuality of the work’s author (typically a natural person), whose non-property right is absolute and inalienable. The principal law governing copyright in Germany is the Act on Copyright and Related Rights (German: Gesetz über Urheberrecht und verwandte Schutzrechte, Urheberrechtsgesetz — UrhG). German copyright law continues to be reformed today, as intellectual technologies keep advancing. Copyright protection undoubtedly plays a key role in shaping the regulatory framework of the modern information society.
So what exactly is copyright infringement?
It is the unlawful use of works of science, literature, and art protected by copyright without the permission of the authors or rights holders, or in violation of the terms of an agreement governing the use of such works. The main forms of copyright infringement include the unlawful copying and distribution of a work, as well as plagiarism. In Germany, as in other European countries, copyright infringement — which is, in essence, theft of intellectual property — is punished fairly seriously, up to several years’ imprisonment. It should be noted, however, that German law has not always moved only toward stricter liability for copyright infringement. The legislator follows the logic that the severity of the punishment should match the severity of the offense. In particular, in 2013, a law was passed limiting the maximum fine for downloading music, films, and TV series from the internet to €1,000. For a first-time offender, the fine may not exceed €155. This reform significantly curbed excessive claims by rights holders, who had been shamelessly exploiting ordinary people’s lack of awareness, sometimes catching them “on the hook” the first time by chance.
It also happens that users, trying to save money or simply out of ignorance, install unlicensed, “pirated” software on their computer. Why exactly is this dangerous?
First, the user can easily fall victim to hackers and online criminals, who use such software to obtain information about a person’s bank details, cards, and passwords to their online wallets.
Second, shady software often contains viruses. Sometimes just downloading such software can be quite an ordeal — you may have to send text messages, go through some multi-step process, or wade through a flood of pop-up banners. Not to mention that you absolutely need a good antivirus program beforehand, since these sites may try to infect your system even before the download completes.
Third, under Art. 106 of the “Act on Copyright” and related rights, an offender faces, at best, a substantial fine, and, at worst, imprisonment for up to three years. It is far more convenient to use legal software and be fully confident in the security and protection of the data you need to work with. In this article, we describe one case from our practice in which we managed to help an unlucky young man with a passion for “flashing” computers.
Client Story: Helping a Neighbor Install Microsoft Office
A young man once came to our law firm needing legal help — let’s call him Stepan. He told us that about a week earlier he had received a summons from the Brandenburg police to appear for questioning in a copyright infringement case. As often happens, Stepan had no idea why he was being summoned or what he might be accused of. The young man had moved to Germany with his family from Novosibirsk about two years earlier under the “Jewish emigration” program. The whole family lived on state welfare benefits. Since his school days, Stepan had been passionate about working with computers; among his friends he had a reputation as an “advanced user,” kept up with the latest software, knew how to install and configure the programs he needed, upgrade his machine, and fix minor hardware issues. Back in Russia, he had occasionally “sinned” by installing pirated copies of official software on his computer, but that was all long ago, in a “past life.” Nothing stopped Stepan from continuing his favorite pastime in Germany as well. With his limited German, he couldn’t find a job and had plenty of free time. Stepan could sit at his computer for hours, and would occasionally earn some extra money by visiting local acquaintances to help them install new software and solve simple problems.
That was exactly what happened when he visited his building neighbor, Igor (name changed), to install Microsoft Office on his new computer. This caused no difficulty at all — Stepan decided to save his friend some money by installing a three-month trial version of Microsoft Office, planning to come back once that period ended to install the standard, paid version. Igor had no understanding of any of this. Being a member of a creative profession — a painter — he had little familiarity with the computer world. Strictly speaking, he only needed his computer to write simple advertising texts for his work and correspond with potential clients. The two friends shared a beer and parted ways, both quite pleased with themselves. Stepan charged Igor a modest €50 for the work and warned him that they’d need to meet again in three months to reinstall a proper version of the program.
A Misunderstanding With a Neighbor, and a Police Report
It’s hard to say whether Stepan explained poorly or Igor simply wasn’t paying close attention, but a misunderstanding arose between the two young men. It turned out Igor was completely convinced that the money he had paid was for the software itself, and that he wouldn’t need to pay anything more. Trouble started fairly soon — three months later, realizing that nothing worked anymore, he began calling Stepan, first politely and then more forcefully, demanding back the €50 he had previously paid for “who knows what.” Our future client once again tried to explain to his friend how licensed software actually worked and refused to refund the €50 he had earned for the work. It would all have been rather funny, if it weren’t so sad... This incident prompted an overworked and frustrated Igor to file a report against his neighbor with the Brandenburg police. He accused Stepan of illegally downloading and installing a “pirated” version of licensed software. The situation was further complicated by the fact that a search of Stepan’s home led to all his computers and USB drives being confiscated for forensic examination. Unfortunately, our client could not guarantee there was nothing prohibited on them.
The Lawyer’s Work: A Misunderstanding, Not Copyright Infringement
As usual in such cases, we immediately requested the full criminal case file from the police. After reviewing the file opened against our client, we understood exactly what he was being accused of. In this case, the substance of the charges was not copyright infringement, but fraud in connection with receiving a “fee” of €50 from his friend for a service that had been promised but not properly delivered. In agreement with Stepan, we prepared a well-reasoned petition to the public prosecutor’s office to discontinue the criminal case under §170(2) of the German Code of Criminal Procedure (Strafprozessordnung — StPO) for lack of sufficient grounds. Our main arguments were as follows.
First, we explained exactly what service Stepan had provided to his friend and presented evidence that there had been no malicious intent whatsoever in his actions.
Second, we pointed out that our client had, in fact, installed a licensed trial version of Microsoft Office, not a pirated copy.
Third, the modest amount of the fee Stepan received clearly indicated the minor significance of the matter.
Outcome: Case Closed, Equipment Returned
These and other persuasive arguments were deemed sufficient. Prosecutors discontinued the criminal case for lack of sufficient grounds, which we promptly reported to our client, who felt as though “a mountain had been lifted off his shoulders.” His relief knew no bounds when he got back his previously confiscated equipment and USB drives with all their data.
Conclusion
We advised Stepan, as we do all our clients, to be more careful, especially in sensitive matters involving software installation and related services. A simple misunderstanding between two young men could have led to truly dire consequences. We once again urge you to stay vigilant, even when a friend asks for a favor, and to try to put all agreements in writing. And if trouble does strike and you need qualified legal help, we are always here at our law firm, where our experienced professionals will be glad to help you resolve the problem.
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