On the dangers of copyright and the benefits of licensed programs (the end)
Today we will continue to talk about the legal aspects of information security. In other words, it’s about how an entrepreneur does not find himself guilty before the right holders and law enforcement officers. This article is intended primarily for managers of organizations that have computers (some prudent people do not have them). If you are not a manager, let your director read it: it will be useful to him. The beginning of the article is here .
1682 Police burns counterfeit storage media found in the office of a bookseller entrepreneur.
Throughout the history of mankind, certain activities have been banned by the authorities for all who have not had authorizing documents. For example, in the 14th century, fabric bleaching technology was considered one of the key ones - and only those who managed to get an official document had the right to engage in this craft - a privilege. In medieval Europe, it was considered forbidden to trade in any goods outside of specially designated places and without first obtaining the corresponding privileges. Legislative prohibitions of anything - from traveling on the road to wearing a beard - with the granting of exceptions only for those who paid for it - this is one of the main historical traditions of our society. In fact, this is the basis of all modern civilization.
')
In the 21st century, in most countries, licenses are required for the use of any computer programs - much the same way as for the use of explosives or weapons. Software licensing is non-state: licenses are usually provided by private companies. But governments carefully monitor the rules of the game and are increasingly pursuing violators of the law, both in Russia and in other countries.
Thus, any business in which computers are used is, de facto, a licensed type of activity, despite the non-state nature of licensing and the accepted procedure for processing documents - not for the activity itself, but for the software used in it.
These documents have become absolutely necessary for every commercial and non-profit organization using digital equipment. Without them, in modern Europe, including Russia, doing business is just as dangerous as in Meisen of the 14th century - to bleach fabric without the privilege of the margrave. Of course, since then the laws have become noticeably more liberal, but still the absence of software licenses entails serious responsibility.
In practice, this responsibility almost always means stopping the business - usually for a long time. Your competitors or detractors can always take advantage of this. In order not to give them such a reason, try to understand well the legal specificity of the issue and correctly execute all the necessary documents. Of course, in advance.
Let's look at some important details of how this is done.
Many activities are prohibited without appropriate licenses. For example, in the Russian Federation, a license is required for fire prevention and extinguishing activities. Similar rules apply to software: to use virtually any program, it is also necessary to first obtain a license.
Recall that in the legislation of the Russian Federation there is no concept of “licensed program” - this is a colloquial expression. It means the presence of a document - a license agreement or, in abbreviated form, a license. The same program will be considered “licensed” or “unlicensed” depending on whether your organization has documents for it. All issues of “licensing” are solved only at the level of duly executed documents - there are no other options. Usually, two types of documents are required: 1) license agreement (for all programs) and 2) accounting documents, confirming transactions related to the transaction (for commercial programs).
“Buy a program” is also a colloquial expression. It means, from a legal point of view, the conclusion of a contract, meaning the acquisition of a license for a certain activity - the use of the relevant program. According to the laws of the Russian Federation, “to buy a program” is literally impossible.
What is this contract? In fact, this is a regular contract, which does not differ in status from all your other contracts - for example, for office rent. It is important to understand that this is a typical official legal document concluded by a person having the right to sign (by default, the CEO).
If a licensing agreement is concluded by a person who does not have the authority to enter into contracts on behalf of the organization, it is not effective - just as any other agreement entered into illegally.
If your organization has computers on its balance sheet, but there are no software licenses, then your affairs are bad: this fact is almost indisputable, documented evidence of illegal activities. Justification that computers serve only to decorate the interior of the office and no activity is carried out with their help - it will not help :)
If there are licenses, but not for those programs that are actually used, this will not help either.
Sometimes managers think that certain models of digital technology are able to protect them from problems with the law by their appearance alone. You can often hear: "We do not have computers, we only have iPhones and iPads." This is a dangerous delusion. And mobile phones, and tablets, and printers with copiers, and any other digital devices - these are the real computers. And from a technical point of view, and from a legal point of view. All of them belong to the category of "computers and other computer devices" and are subject to the law of the REED . By the way, to ensure legal cleanliness for computers of non-standard formats is rather difficult, while for standard computers it is not a big deal: all the relevant procedures have been worked out for decades.
Another common misconception: "We do not use software, we are all in the clouds." Unfortunately, saving this way is difficult. Few people know this, but Russian legislation requires licenses for all the programs used, in any case - regardless of whether the programs are launched from their own pocket smartphone or from another remote server. The location and format of the media do not matter. Do you think that the contract for SaaS (“software as a service”) frees you from the need to purchase licenses for all RIDs used in the process of obtaining this “service”? This is not true. The service agreement does not exempt from the need for licensing of related IP. Carefully study each SaaS contract offered to you, so as not to be in the position of violating the law for your money. The use of RIA under a service agreement instead of a license agreement is a sham transaction with unpleasant consequences.
Strangely enough, the Civil Code of the Russian Federation establishes that a license for any computer program is valid only for 5 years by default, unless the right holder explicitly states otherwise (Article 1235, clause 4). This surprising norm, apparently, does not meet the reputational interests of most software vendors, because it makes it too obvious forcing consumers to regularly pay for new and new programs, even if the former are completely satisfied with them. We were unable to find a single case of harassment of consumers who legally purchased software licenses, due to the “expiration of the statute of limitations”. In the current international practice of IT business, it is considered that a license for a software product is by default considered to be indefinite. But never forget about the existence of this legislation and the corresponding risks if you use any program in your business completely officially, but for too long.
Note that both the obligation of the license agreement and the 5-year term of its validity by default - all this applies not only to computer programs, but also to any other REED. For example, to books and music CDs. Read the Civil Code. Why such legislation was adopted, we could not figure out.
It should be noted that in some cases, time-based licensing of the RIA seems quite fair. For example, for a time-based fee, anti-virus companies traditionally offer their products, including BitDefender . The fact is that users pay, in fact, for a subscription to the daily provision of signature and heuristic signs of a dangerous code. Anti-virus company specialists around the clock monitor current activity on the global network and identify current threats. Then information about these threats is automatically transmitted by servers to the computers of millions of clients, where the anti-virus program blocks this danger using this information. And this program itself is actually free: you can always download it from the official website :) Just without a subscription to the threat identification services, it does not make much sense. In order for customers to receive a subscription, it is necessary that dozens of highly qualified specialists constantly do their work in the central office. Users usually have the impression that the antivirus solves all problems automatically, but in fact, this apparent simplicity is the daily work of many people.
In contrast, the trendy licensing of such software, which is written by the manufacturer at a time and then does not require any work or staffing of specialists, is, in the opinion of many consumers, illogical and socially unfair.
Anyway, the term of any contract, including the license, is one of its most important provisions. Never forget that. And do not be surprised if after a few years you can’t buy a CD with music, and the only possibility is to buy a license to listen to it a certain number of times :) In the end, everything is decided at the legislative level, and the law already today allows copyright holders to establish any conditions - including such.
It is well known that some programs (for example, those to which business-critical data formats are tied) must be used for much longer than 5 years. An example is corporate databases. Their manufacturers may not be aware of the peculiarities of Russian legislation. So that after the passage of time no one could make a claim to you in connection with a formal violation of the law, contact the manufacturers: any vendor of the international level, monitoring their reputation, will be happy to provide their customers with a document confirming the perpetuity of the license, if it is such that it is de facto .
Software license agreements are either registered (for a specific legal entity) or non-nominal (to bearer). In the first case, when a legal entity is liquidated, you automatically lose the right to use the software. Even renaming a legal entity can cause problems. In this regard, bearer licensed programs are much more valuable. Such programs, for example, include “boxed” operating system licenses for workstations. In any case, today they are still available to consumers precisely on such conditions. But given the global trend of tightening the conditions for using software, in 2-3 years they are likely to disappear from sale - or a sharp decrease in the choice, which is already small.
Some licenses give the right to use the program only on a single, strictly defined instance of hardware. If any of its components fail, you automatically lose the right to use the program. This means that you will have to pay for it again - if at that time it is still available. Do not forget: the copyright holder may authorize the use of their RIA under any conditions. Even the most unfavorable, from your point of view. If the contract deprives you of the right to use the program, for example, if you replace the hard disk with another exactly the same copy - unfortunately, this is completely legal.
A typical example of a software license linked to a hardware instance is the OEM version of the server operating system that comes with the server. In the event of a motherboard failure, you will have to take the server to the service center for an indefinite period along with all your information — with the relevant part of your business stopping during this time. You do not have the right to replace hard disks or a system board yourself if, under the terms of a license agreement, the copyright holder has authorized you to use your OS only on a specific piece of hardware (that is, a combination of several specific components). Both the duration of warranty repairs and the price of post-warranty repairs are, of course, unpredictable parameters. Moreover, the server repair by the manufacturer may turn out to be completely impossible - for example, if he does not consider the defect as a warranty case or if this equipment model is no longer being manufactured. Therefore, proceed from the fact that every time the hardware breaks down or when you decide to replace it, you will have to re-acquire the license for the same software. As you already understand, such license terms are not very profitable.
OEM licenses, on the other hand, are convenient in that they usually allow equipment to be transferred along with contract programs — from one person to another. In particular, the founder of a legal entity can quickly and legally perform the legalization for its business of any amount of software supplied with computers that he previously bought for his cash. This is especially true for small businesses. Making a transfer to the founder of their personal computers (together with OEM licenses for programs) in the ownership of the organization at the price set by the founder is quite simple. And for licenses of other types, besides OEM, it is not always possible to implement such a contract.
To avoid problems, always carefully review the license agreements offered to you. Remember that choosing the right set of business software is a complex task that requires you to take into account hundreds of technological, commercial and legal factors - simultaneously and interrelatedly. And every year the task of forming a problem-free software complex for the given requirements is becoming increasingly difficult - these are the trends in the development of the information technology market. If you are not confident in your abilities, hire a consultant - a specialist competent in both IT and jurisprudence, who will choose the best software package for you, customize them, document and provide a written guarantee that the combination of conditions for all of your licensed licenses contracts meets the specified requirements of your business for a given period of time. Including, of course, full legal purity. The services of such a specialist are not cheap, but they are worth it.
The written opinion of a lawyer on the legality of using all those programs for which you do not have licensing agreements will not interfere. In particular, these are programs supplied with the equipment, but not explicitly indicated in the documents on its acquisition. Of course, such purchases should be avoided. Otherwise, you risk, for example, making your business dependent on a router whose operating system is not licensed for use on the territory of the Russian Federation at all - due to restrictions on cryptographic algorithms, due to the whim of the right holder or for any other reasons. Imagine the consequences of an incompetent decision that made such software the logical center of your local network. You can’t allow a business to become dependent on specific functions, formats, protocols, or other features of such software that you can’t license with all your desire. This would mean the need to be in an “underground position for life”, i.e. the inability to get rid of the status of the offender.
We are aware of unfortunate cases when incompetent managers tightly tied a business to deliberately unlicensed software, the rejection of which would require retraining of personnel, correcting a business model, converting arrays of data from proprietary formats and buying a completely new hardware. And, of course, the purchase of new licenses for new software.
If the seller of commercial software has provided you with license agreements executed in the form of paper documents, they should be placed in a labeled folder and carefully stored. It is these documents, and not disks or other media, that will serve as legal protection for your organization. For free programs, incl. proprietary, everything is somewhat more complicated: the license agreement for each of them must be printed out in the format of the internal document of your organization and certified by the person having the right of signature - the director of IT or the general director. The same applies to commercial licensing agreements, incl. free software that you received in electronic form: they must be printed with the date and officially assured. Documentation required by programs written by your order or by your own full-time programmers also require documentation. The programming language, the size of the programs, their purpose and other features do not matter. For all contracts it is necessary to provide the possibility of long-term and reliable storage.
In preparing this material, we studied the practice of law enforcement in the Russian Federation and found that it was not enough to use commercial software in business licensing agreements. Despite the fact that the Civil Code of the Russian Federation establishes a license agreement as the only document required for the use of RIAs, in practice the legality of corporate use of commercial software is verified, first of all, by the accounting documents on its acquisition. Why? Do not forget that every organization, except the CC, must comply with all other laws and regulations. Financial documents confirming the official purchase of licenses for commercial software should be kept as carefully as the licensing agreements themselves.
To test the legality of using software in your business, a simple statement to the police is enough that any competitor, raider, or offended employee can send by mail any day. At the same time, it is possible that he will sign the application with a false name - for example, a real or fictional representative of any company-owner. But this is likely to become clear only after the application is accepted for consideration. If the stated facts are confirmed, i.e. you will not have supporting documents, the applicant's anonymity will no longer matter.
The cost price of the application for your foe is a sheet of paper and a postal envelope with a stamp.
It should be noted that during the check the manager will not be able to refer to the fact that he “did not know” about the absence of his organization’s licenses for commercial software. The fact is that if it was bought, it should be reflected in the accounting entries. And if the posting was not, then there was no purchase. In the absence of a purchase event, there is nowhere to take licenses.
If your employees one day refuse to work “on unlicensed programs,” you will not be able to dismiss them. Under the current legislation, any fact of dismissal for refusing to work with an illegally used software organization will cause a terrible scandal - with a resonance in the media and very serious legal consequences.You will be able to make a scandal of this magnitude, at best, by immediately purchasing all the licenses and with substantial compensation - both to the right holders and the dismissed employee. And the worst case is better not to even think.
If one of your employees once guesses to tell you (or, moreover, notify you in writing) that “I do not agree to work with unlicensed programs,” then from that moment on it becomes unavoidable.- no matter how bad it works. If you risk dismissing him, and he will write to the police a statement that the reason for the dismissal was his refusal to participate in illegal activities - using software without licenses - this is a disaster. In other words, from the moment of dismissal you will become dependent on your former employee. Please note that the scope of software is highly transparent: in the accounting documents you can always determine whether the organization had licenses at the time of dismissal. The absence of a specific accounting entry as of a specific date is simple, obvious, and ideally documented evidence.
A characteristic feature of the strange sphere of copyright is that any cases related to the “violation of the rights of copyright holders” are very easy for the accuser. Practically at any work with computers each organization is compelled to use set of commercial REED. The legislation is structured in such a way that the very fact of their use makes you guilty by default, and innocent - only if you have authorization documents for all these REEDs without exception.
Therefore, if your secretary noticed that her computer is too slow and on this basis concluded that “unlicensed programs” (and this is in fact true, although it has nothing to do with speed), pay for all the necessary licenses as soon as possible.and thank the secretary. Otherwise, you will become a hostage to her mood and favor to you :)
A common pattern of behavior for employees who detect “unlicensed” programs in their workplaces is an immediate and very significant reduction in diligence and productivity. Even if people do not tell their management about the observations they have made, this does not mean that they do not understand how much the facts they have discovered make it difficult for them to dismiss. “Unlicensed” is an ideal tool for blackmailing your boss in any controversial or conflict situation that may arise. “Why use such a powerful tool ahead of time? - thinks sly employee. - Suddenly one day I will do something wrong and it will cause losses? What if I ever want to lower my salary? Suddenly something else will happen? This is where I’ll draw my trump card: do you have unlicensed programs! ”
Under the current legislation and very tough law enforcement practice, this trump card instantly makes the authorities compliant. Eliminate this danger to your business - paying for software will be cheaper.
"Unlicensed" instinctively perceived by staff as a reason for idleness, mistakes in work, the constant use of the computer for personal purposes instead of work. The head of an organization that does not have licenses for the software used is deprived of the opportunity to demand integrity and quality from employees: they feel that he has few opportunities to influence them. “Unreal programs” is psychologically about the same thing as “unreal king” :) Saving on licenses means losing tens of times more on the company's reputation in the eyes of employees (we will give an exact economic calculation in the next blog release). If the management thus demonstrates to the employees the weakness, they will not work well. In other words,with an equal salary and with other things being equal, on “licensed” programs the employee works much more productively and more conscientiously: “licensing” perfectly disciplines.
In addition, in “unlicensed programs” viruses are inevitably infused (the reasons for this amazing phenomenon, we will now tell), which in reality radically hinders the work of employees. In other words, providing them with an employer unsuitable for the work of computers and in fact can greatly offend and give rise to response and appropriate attitude towards the employer.
The worst thing is if competitors are aware of the absence of the necessary documents from the organization. In this case, their ability to neutralize a competing business becomes almost unlimited.
God forbid you keep the business without having licenses for the software used in it. These days it’s too dangerous.
Do not take risks. Do not wait until Russia joins the WTO. International laws are even tougher than Russian ones. Do not allow any competitors or employees to manipulate you. As soon as possible, conduct a full audit of your computer infrastructure and urgently purchase licenses for all the software for which you do not have them yet. Remember that the process of purchasing licenses by bank transfer usually takes a few days, and for some types of software - a few weeks.
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In our time, no one specialist will rush to the embrasure, working on a boss who deliberately exposes him to the blow for his own benefit. In any case, in Moscow, where the conversation of a computer specialist with an employer is now short: either submit a license, or solve all your problems on your own.
Without all the licenses you need, you will never find a good system administrator. By 2011, this was completely unrealistic. He will not agree to work on such conditions - regardless of whether your lack of licenses is caused by lack of money or unwillingness to pay. Indeed: why be a scapegoat and at your own expense solve the material problems of a stranger - a non-poor business owner? Among professionals, such work is rightly considered the dirtiest, undervalued and senseless of all possible. This is just not interesting.
With regard to software, managers still quite often pretend that they have “no money”. Only this does not help for a long time. Especially when it is clear from external signs that in fact there is enough money. Every intelligent person understands: if the management of the company has money for expensive cars and foreign voyages, but “no money for licenses”, then the announcement “requires a system administrator” means that the company searches for a scapegoat - a stupid and not-so-far man.
By the way, there is a national sign: the general director of the organization, which actually has no money for licenses, for lack of a car, goes by public transport.
But even a genuine lack of money for software, of course, in no way helps to find a computer programmer.
The director who hopes to save money and avoid entering into licensing contracts for software, making the guilty not himself, but the hired sysadmin, is doing the wrong thing and taking great risks. First of all, no one will ever voluntarily go to work for him, as for Pushkin’s Anchar. And even the general director, with all his desire, does not have the capabilities of the “invincible lord” and cannot use the slave :) Secondly, the general director is responsible for everything that happens in the organization in any case and under any circumstances .
Lack of licenses leaves a wasteful leader a poor choice: 1) no one will serve his computer infrastructure, 2) he will do it himself, 3) only an amateur who issues himself as a sysadmin will agree to it - “lamer”, “kettle”, person with such low qualifications that it does not allow to find any other job.
The most likely third option. Try to guess what state such a “specialist” will bring computers to in just a few days :)
There is no need to work for a professional on criminal and underground conditions, especially considering the total shortage of personnel in the Russian Federation every year. And the layman will have to pay no less than under normal legal protection conditions a professional would receive: no money is enough to compensate for the risk that the absence of authorizing documents entails. Even a stupid person can instinctively feel that they want to make him a scapegoat. Realizing this unenviable role, the switchman will sooner or later demand compensation. Or simply leave.
It is wiser for the manager not to play such games, but to pay in advance for licenses.
The old trick has not worked for a long time - “first learn to swim, and then we will pour into the pool of water”. The organization must firstpay for licenses, i.e. guarantee specialist full legal security, and only then he agrees to start work.
So, the lack of licenses automatically causes the absence of a specialist, and this, in turn, automatically causes a complete mess in the computer infrastructure - its terrible cost, inefficiency, insecurity and insecurity. In the end, it turns out that an ill-conceived attempt to save immediately turns into irreversible losses. Note: the irreversibility of losses from the decision not to buy a license arises immediately, on the very first working day - while the losses themselves are stretched over time and will continue, gradually aggravating, during the whole time of doing business. That is infinite.
Of course, the subsequent purchase of licenses (and everyone will have to do it without exception, and in any case , believe me) will stop the growth of losses, but still will not return a single ruble. But - it will allow you to resume the search for a good specialist and even give a small chance that they will be crowned with success.
In times of serfdom, dismissal was problematic. The general director of an enterprise that mines ore without a license might not have been afraid that the system administrator would report it to the authorities or quit it. But since then, much has changed, and today a sensible leader treats all his employees with respect.
Many managers, desperate to find at least some kind of computer technician in Moscow, do not understand that the reason for this is the lack of documents for software. And they naively decide that it is necessary to outsource the maintenance of computers, entrusting the corporate contractor. This is a dangerous mistake. Finding such a primitive and unqualified "sysadmin" that he did not hear about any licenses and sees no risk for himself - this is still real, although it makes no sense :) But finding an equally stupid corporate contractor is already from the realm of fantasy. Entering into a computer maintenance contract with a contractor without software licenses is tantamount to a lifelong tribute to this contractor — just for not doing anything at all. You will have to pay not for his work, but simply for his consent formally, on paper,to enter into a contractual relationship with a rogue organization — and the absence of these licenses means such a status in modern business.
There can be no question of any demand for the fulfillment of obligations by the contractor in such a situation: neither can a leader who has saved something, nor can a “saved” manager sue in principle because he is constantly under the Damocles sword of lack of licenses. One has only to go talk on this topic in the context of any official authority - and the trap shut. The only question is whether it will happen a little earlier or a little later. Strangely enough, incompetent leaders quite often put this trap on themselves.
And, of course, no serious contractor for servicing computers without licenses today will agree. Therefore, it is necessary to choose a contractor from a limited number of the most irresponsible and incompetent outsiders-outsiders.
There is another legal danger. Due to the effect of autoprogramming and other features of the architecture of modern computers, which we have already talked about , a typical office network without a good programmer quickly turns into a real zoo of viruses.Do you know where those same botnets come from, which have recently terrified even large corporations and governments? Botnets live in those computers that are not serviced by anyone - or "serviced" only in words. If a botnet settles in your corporate network, it will mean that attacks against other computer networks will be made from your IP address. Most likely - on the network of large and serious organizations (small ones are usually not of interest), including state ones. And such attacks, of course, entail thorough investigations - often not only at the level of local authorities, but also at the level of Interpol.
If the traces of the attack lead to your office, then the consequences of this will be fundamentally different legally - depending on whether your organization complied with legislation related to computers or did not comply.
If you have the correct documents for all the software, you, from a legal point of view, find yourself in the position of a victim, a victim - that is, in the same position as those whose computer was attacked from your network. In other words, the availability of documents on the program will mean for the police that the attack did not happen thanks to, but in spite of your actions.
And in the absence of documents, your position will be completely different: in this case, it turns out that the attack occurred precisely because of your actions.The head has not concluded contracts? Not paid for official software? Did not take measures to prevent his business from harming others? This automatically means that its solutions led to the launch of programs obtained from an unknown source - that is, programs with unknown functionality, including those suspected of being infected. The presence of a virus in these programs caused the participation of his computers in the botnet and in the attack? Caused. Unfortunately, even in the absence of intent, wine arises here.
Those who think that the volume of legislative claims related to “unlicensed” is limited to the cost of programs and the interests of the right holders are mistaken. In practice, claims can be made not only on the fact of violation of the rights of the right holders, but also on the fact of the actions that caused the violation of the operation of third-party computer systems. In other words, the danger of your responsibility for someone to drop something on your computer once in a while, if there are no documents on the software, it increases many times over. This is another argument for not risking.
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1682 Police burns counterfeit storage media found in the office of a bookseller entrepreneur.
Throughout the history of mankind, certain activities have been banned by the authorities for all who have not had authorizing documents. For example, in the 14th century, fabric bleaching technology was considered one of the key ones - and only those who managed to get an official document had the right to engage in this craft - a privilege. In medieval Europe, it was considered forbidden to trade in any goods outside of specially designated places and without first obtaining the corresponding privileges. Legislative prohibitions of anything - from traveling on the road to wearing a beard - with the granting of exceptions only for those who paid for it - this is one of the main historical traditions of our society. In fact, this is the basis of all modern civilization.
')
In the 21st century, in most countries, licenses are required for the use of any computer programs - much the same way as for the use of explosives or weapons. Software licensing is non-state: licenses are usually provided by private companies. But governments carefully monitor the rules of the game and are increasingly pursuing violators of the law, both in Russia and in other countries.
Thus, any business in which computers are used is, de facto, a licensed type of activity, despite the non-state nature of licensing and the accepted procedure for processing documents - not for the activity itself, but for the software used in it.
These documents have become absolutely necessary for every commercial and non-profit organization using digital equipment. Without them, in modern Europe, including Russia, doing business is just as dangerous as in Meisen of the 14th century - to bleach fabric without the privilege of the margrave. Of course, since then the laws have become noticeably more liberal, but still the absence of software licenses entails serious responsibility.
In practice, this responsibility almost always means stopping the business - usually for a long time. Your competitors or detractors can always take advantage of this. In order not to give them such a reason, try to understand well the legal specificity of the issue and correctly execute all the necessary documents. Of course, in advance.
Let's look at some important details of how this is done.
Rule number 1: you can ensure the legal purity of the computer infrastructure of your business in one single way - with a correctly compiled package of documents.
Many activities are prohibited without appropriate licenses. For example, in the Russian Federation, a license is required for fire prevention and extinguishing activities. Similar rules apply to software: to use virtually any program, it is also necessary to first obtain a license.
Recall that in the legislation of the Russian Federation there is no concept of “licensed program” - this is a colloquial expression. It means the presence of a document - a license agreement or, in abbreviated form, a license. The same program will be considered “licensed” or “unlicensed” depending on whether your organization has documents for it. All issues of “licensing” are solved only at the level of duly executed documents - there are no other options. Usually, two types of documents are required: 1) license agreement (for all programs) and 2) accounting documents, confirming transactions related to the transaction (for commercial programs).
“Buy a program” is also a colloquial expression. It means, from a legal point of view, the conclusion of a contract, meaning the acquisition of a license for a certain activity - the use of the relevant program. According to the laws of the Russian Federation, “to buy a program” is literally impossible.
What is this contract? In fact, this is a regular contract, which does not differ in status from all your other contracts - for example, for office rent. It is important to understand that this is a typical official legal document concluded by a person having the right to sign (by default, the CEO).
If a licensing agreement is concluded by a person who does not have the authority to enter into contracts on behalf of the organization, it is not effective - just as any other agreement entered into illegally.
If your organization has computers on its balance sheet, but there are no software licenses, then your affairs are bad: this fact is almost indisputable, documented evidence of illegal activities. Justification that computers serve only to decorate the interior of the office and no activity is carried out with their help - it will not help :)
If there are licenses, but not for those programs that are actually used, this will not help either.
Sometimes managers think that certain models of digital technology are able to protect them from problems with the law by their appearance alone. You can often hear: "We do not have computers, we only have iPhones and iPads." This is a dangerous delusion. And mobile phones, and tablets, and printers with copiers, and any other digital devices - these are the real computers. And from a technical point of view, and from a legal point of view. All of them belong to the category of "computers and other computer devices" and are subject to the law of the REED . By the way, to ensure legal cleanliness for computers of non-standard formats is rather difficult, while for standard computers it is not a big deal: all the relevant procedures have been worked out for decades.
Another common misconception: "We do not use software, we are all in the clouds." Unfortunately, saving this way is difficult. Few people know this, but Russian legislation requires licenses for all the programs used, in any case - regardless of whether the programs are launched from their own pocket smartphone or from another remote server. The location and format of the media do not matter. Do you think that the contract for SaaS (“software as a service”) frees you from the need to purchase licenses for all RIDs used in the process of obtaining this “service”? This is not true. The service agreement does not exempt from the need for licensing of related IP. Carefully study each SaaS contract offered to you, so as not to be in the position of violating the law for your money. The use of RIA under a service agreement instead of a license agreement is a sham transaction with unpleasant consequences.
Strangely enough, the Civil Code of the Russian Federation establishes that a license for any computer program is valid only for 5 years by default, unless the right holder explicitly states otherwise (Article 1235, clause 4). This surprising norm, apparently, does not meet the reputational interests of most software vendors, because it makes it too obvious forcing consumers to regularly pay for new and new programs, even if the former are completely satisfied with them. We were unable to find a single case of harassment of consumers who legally purchased software licenses, due to the “expiration of the statute of limitations”. In the current international practice of IT business, it is considered that a license for a software product is by default considered to be indefinite. But never forget about the existence of this legislation and the corresponding risks if you use any program in your business completely officially, but for too long.
Note that both the obligation of the license agreement and the 5-year term of its validity by default - all this applies not only to computer programs, but also to any other REED. For example, to books and music CDs. Read the Civil Code. Why such legislation was adopted, we could not figure out.
It should be noted that in some cases, time-based licensing of the RIA seems quite fair. For example, for a time-based fee, anti-virus companies traditionally offer their products, including BitDefender . The fact is that users pay, in fact, for a subscription to the daily provision of signature and heuristic signs of a dangerous code. Anti-virus company specialists around the clock monitor current activity on the global network and identify current threats. Then information about these threats is automatically transmitted by servers to the computers of millions of clients, where the anti-virus program blocks this danger using this information. And this program itself is actually free: you can always download it from the official website :) Just without a subscription to the threat identification services, it does not make much sense. In order for customers to receive a subscription, it is necessary that dozens of highly qualified specialists constantly do their work in the central office. Users usually have the impression that the antivirus solves all problems automatically, but in fact, this apparent simplicity is the daily work of many people.
In contrast, the trendy licensing of such software, which is written by the manufacturer at a time and then does not require any work or staffing of specialists, is, in the opinion of many consumers, illogical and socially unfair.
Anyway, the term of any contract, including the license, is one of its most important provisions. Never forget that. And do not be surprised if after a few years you can’t buy a CD with music, and the only possibility is to buy a license to listen to it a certain number of times :) In the end, everything is decided at the legislative level, and the law already today allows copyright holders to establish any conditions - including such.
It is well known that some programs (for example, those to which business-critical data formats are tied) must be used for much longer than 5 years. An example is corporate databases. Their manufacturers may not be aware of the peculiarities of Russian legislation. So that after the passage of time no one could make a claim to you in connection with a formal violation of the law, contact the manufacturers: any vendor of the international level, monitoring their reputation, will be happy to provide their customers with a document confirming the perpetuity of the license, if it is such that it is de facto .
Software license agreements are either registered (for a specific legal entity) or non-nominal (to bearer). In the first case, when a legal entity is liquidated, you automatically lose the right to use the software. Even renaming a legal entity can cause problems. In this regard, bearer licensed programs are much more valuable. Such programs, for example, include “boxed” operating system licenses for workstations. In any case, today they are still available to consumers precisely on such conditions. But given the global trend of tightening the conditions for using software, in 2-3 years they are likely to disappear from sale - or a sharp decrease in the choice, which is already small.
Some licenses give the right to use the program only on a single, strictly defined instance of hardware. If any of its components fail, you automatically lose the right to use the program. This means that you will have to pay for it again - if at that time it is still available. Do not forget: the copyright holder may authorize the use of their RIA under any conditions. Even the most unfavorable, from your point of view. If the contract deprives you of the right to use the program, for example, if you replace the hard disk with another exactly the same copy - unfortunately, this is completely legal.
A typical example of a software license linked to a hardware instance is the OEM version of the server operating system that comes with the server. In the event of a motherboard failure, you will have to take the server to the service center for an indefinite period along with all your information — with the relevant part of your business stopping during this time. You do not have the right to replace hard disks or a system board yourself if, under the terms of a license agreement, the copyright holder has authorized you to use your OS only on a specific piece of hardware (that is, a combination of several specific components). Both the duration of warranty repairs and the price of post-warranty repairs are, of course, unpredictable parameters. Moreover, the server repair by the manufacturer may turn out to be completely impossible - for example, if he does not consider the defect as a warranty case or if this equipment model is no longer being manufactured. Therefore, proceed from the fact that every time the hardware breaks down or when you decide to replace it, you will have to re-acquire the license for the same software. As you already understand, such license terms are not very profitable.
OEM licenses, on the other hand, are convenient in that they usually allow equipment to be transferred along with contract programs — from one person to another. In particular, the founder of a legal entity can quickly and legally perform the legalization for its business of any amount of software supplied with computers that he previously bought for his cash. This is especially true for small businesses. Making a transfer to the founder of their personal computers (together with OEM licenses for programs) in the ownership of the organization at the price set by the founder is quite simple. And for licenses of other types, besides OEM, it is not always possible to implement such a contract.
To avoid problems, always carefully review the license agreements offered to you. Remember that choosing the right set of business software is a complex task that requires you to take into account hundreds of technological, commercial and legal factors - simultaneously and interrelatedly. And every year the task of forming a problem-free software complex for the given requirements is becoming increasingly difficult - these are the trends in the development of the information technology market. If you are not confident in your abilities, hire a consultant - a specialist competent in both IT and jurisprudence, who will choose the best software package for you, customize them, document and provide a written guarantee that the combination of conditions for all of your licensed licenses contracts meets the specified requirements of your business for a given period of time. Including, of course, full legal purity. The services of such a specialist are not cheap, but they are worth it.
The written opinion of a lawyer on the legality of using all those programs for which you do not have licensing agreements will not interfere. In particular, these are programs supplied with the equipment, but not explicitly indicated in the documents on its acquisition. Of course, such purchases should be avoided. Otherwise, you risk, for example, making your business dependent on a router whose operating system is not licensed for use on the territory of the Russian Federation at all - due to restrictions on cryptographic algorithms, due to the whim of the right holder or for any other reasons. Imagine the consequences of an incompetent decision that made such software the logical center of your local network. You can’t allow a business to become dependent on specific functions, formats, protocols, or other features of such software that you can’t license with all your desire. This would mean the need to be in an “underground position for life”, i.e. the inability to get rid of the status of the offender.
We are aware of unfortunate cases when incompetent managers tightly tied a business to deliberately unlicensed software, the rejection of which would require retraining of personnel, correcting a business model, converting arrays of data from proprietary formats and buying a completely new hardware. And, of course, the purchase of new licenses for new software.
If the seller of commercial software has provided you with license agreements executed in the form of paper documents, they should be placed in a labeled folder and carefully stored. It is these documents, and not disks or other media, that will serve as legal protection for your organization. For free programs, incl. proprietary, everything is somewhat more complicated: the license agreement for each of them must be printed out in the format of the internal document of your organization and certified by the person having the right of signature - the director of IT or the general director. The same applies to commercial licensing agreements, incl. free software that you received in electronic form: they must be printed with the date and officially assured. Documentation required by programs written by your order or by your own full-time programmers also require documentation. The programming language, the size of the programs, their purpose and other features do not matter. For all contracts it is necessary to provide the possibility of long-term and reliable storage.
In preparing this material, we studied the practice of law enforcement in the Russian Federation and found that it was not enough to use commercial software in business licensing agreements. Despite the fact that the Civil Code of the Russian Federation establishes a license agreement as the only document required for the use of RIAs, in practice the legality of corporate use of commercial software is verified, first of all, by the accounting documents on its acquisition. Why? Do not forget that every organization, except the CC, must comply with all other laws and regulations. Financial documents confirming the official purchase of licenses for commercial software should be kept as carefully as the licensing agreements themselves.
Rule number 2: in the absence of licenses and accounting entries, you can conduct business only until someone has complained about you.
To test the legality of using software in your business, a simple statement to the police is enough that any competitor, raider, or offended employee can send by mail any day. At the same time, it is possible that he will sign the application with a false name - for example, a real or fictional representative of any company-owner. But this is likely to become clear only after the application is accepted for consideration. If the stated facts are confirmed, i.e. you will not have supporting documents, the applicant's anonymity will no longer matter.
The cost price of the application for your foe is a sheet of paper and a postal envelope with a stamp.
It should be noted that during the check the manager will not be able to refer to the fact that he “did not know” about the absence of his organization’s licenses for commercial software. The fact is that if it was bought, it should be reflected in the accounting entries. And if the posting was not, then there was no purchase. In the absence of a purchase event, there is nowhere to take licenses.
If your employees one day refuse to work “on unlicensed programs,” you will not be able to dismiss them. Under the current legislation, any fact of dismissal for refusing to work with an illegally used software organization will cause a terrible scandal - with a resonance in the media and very serious legal consequences.You will be able to make a scandal of this magnitude, at best, by immediately purchasing all the licenses and with substantial compensation - both to the right holders and the dismissed employee. And the worst case is better not to even think.
If one of your employees once guesses to tell you (or, moreover, notify you in writing) that “I do not agree to work with unlicensed programs,” then from that moment on it becomes unavoidable.- no matter how bad it works. If you risk dismissing him, and he will write to the police a statement that the reason for the dismissal was his refusal to participate in illegal activities - using software without licenses - this is a disaster. In other words, from the moment of dismissal you will become dependent on your former employee. Please note that the scope of software is highly transparent: in the accounting documents you can always determine whether the organization had licenses at the time of dismissal. The absence of a specific accounting entry as of a specific date is simple, obvious, and ideally documented evidence.
A characteristic feature of the strange sphere of copyright is that any cases related to the “violation of the rights of copyright holders” are very easy for the accuser. Practically at any work with computers each organization is compelled to use set of commercial REED. The legislation is structured in such a way that the very fact of their use makes you guilty by default, and innocent - only if you have authorization documents for all these REEDs without exception.
Therefore, if your secretary noticed that her computer is too slow and on this basis concluded that “unlicensed programs” (and this is in fact true, although it has nothing to do with speed), pay for all the necessary licenses as soon as possible.and thank the secretary. Otherwise, you will become a hostage to her mood and favor to you :)
A common pattern of behavior for employees who detect “unlicensed” programs in their workplaces is an immediate and very significant reduction in diligence and productivity. Even if people do not tell their management about the observations they have made, this does not mean that they do not understand how much the facts they have discovered make it difficult for them to dismiss. “Unlicensed” is an ideal tool for blackmailing your boss in any controversial or conflict situation that may arise. “Why use such a powerful tool ahead of time? - thinks sly employee. - Suddenly one day I will do something wrong and it will cause losses? What if I ever want to lower my salary? Suddenly something else will happen? This is where I’ll draw my trump card: do you have unlicensed programs! ”
Under the current legislation and very tough law enforcement practice, this trump card instantly makes the authorities compliant. Eliminate this danger to your business - paying for software will be cheaper.
"Unlicensed" instinctively perceived by staff as a reason for idleness, mistakes in work, the constant use of the computer for personal purposes instead of work. The head of an organization that does not have licenses for the software used is deprived of the opportunity to demand integrity and quality from employees: they feel that he has few opportunities to influence them. “Unreal programs” is psychologically about the same thing as “unreal king” :) Saving on licenses means losing tens of times more on the company's reputation in the eyes of employees (we will give an exact economic calculation in the next blog release). If the management thus demonstrates to the employees the weakness, they will not work well. In other words,with an equal salary and with other things being equal, on “licensed” programs the employee works much more productively and more conscientiously: “licensing” perfectly disciplines.
In addition, in “unlicensed programs” viruses are inevitably infused (the reasons for this amazing phenomenon, we will now tell), which in reality radically hinders the work of employees. In other words, providing them with an employer unsuitable for the work of computers and in fact can greatly offend and give rise to response and appropriate attitude towards the employer.
The worst thing is if competitors are aware of the absence of the necessary documents from the organization. In this case, their ability to neutralize a competing business becomes almost unlimited.
God forbid you keep the business without having licenses for the software used in it. These days it’s too dangerous.
Do not take risks. Do not wait until Russia joins the WTO. International laws are even tougher than Russian ones. Do not allow any competitors or employees to manipulate you. As soon as possible, conduct a full audit of your computer infrastructure and urgently purchase licenses for all the software for which you do not have them yet. Remember that the process of purchasing licenses by bank transfer usually takes a few days, and for some types of software - a few weeks.
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In our time, no one specialist will rush to the embrasure, working on a boss who deliberately exposes him to the blow for his own benefit. In any case, in Moscow, where the conversation of a computer specialist with an employer is now short: either submit a license, or solve all your problems on your own.
Without all the licenses you need, you will never find a good system administrator. By 2011, this was completely unrealistic. He will not agree to work on such conditions - regardless of whether your lack of licenses is caused by lack of money or unwillingness to pay. Indeed: why be a scapegoat and at your own expense solve the material problems of a stranger - a non-poor business owner? Among professionals, such work is rightly considered the dirtiest, undervalued and senseless of all possible. This is just not interesting.
With regard to software, managers still quite often pretend that they have “no money”. Only this does not help for a long time. Especially when it is clear from external signs that in fact there is enough money. Every intelligent person understands: if the management of the company has money for expensive cars and foreign voyages, but “no money for licenses”, then the announcement “requires a system administrator” means that the company searches for a scapegoat - a stupid and not-so-far man.
By the way, there is a national sign: the general director of the organization, which actually has no money for licenses, for lack of a car, goes by public transport.
But even a genuine lack of money for software, of course, in no way helps to find a computer programmer.
The director who hopes to save money and avoid entering into licensing contracts for software, making the guilty not himself, but the hired sysadmin, is doing the wrong thing and taking great risks. First of all, no one will ever voluntarily go to work for him, as for Pushkin’s Anchar. And even the general director, with all his desire, does not have the capabilities of the “invincible lord” and cannot use the slave :) Secondly, the general director is responsible for everything that happens in the organization in any case and under any circumstances .
Lack of licenses leaves a wasteful leader a poor choice: 1) no one will serve his computer infrastructure, 2) he will do it himself, 3) only an amateur who issues himself as a sysadmin will agree to it - “lamer”, “kettle”, person with such low qualifications that it does not allow to find any other job.
The most likely third option. Try to guess what state such a “specialist” will bring computers to in just a few days :)
There is no need to work for a professional on criminal and underground conditions, especially considering the total shortage of personnel in the Russian Federation every year. And the layman will have to pay no less than under normal legal protection conditions a professional would receive: no money is enough to compensate for the risk that the absence of authorizing documents entails. Even a stupid person can instinctively feel that they want to make him a scapegoat. Realizing this unenviable role, the switchman will sooner or later demand compensation. Or simply leave.
It is wiser for the manager not to play such games, but to pay in advance for licenses.
The old trick has not worked for a long time - “first learn to swim, and then we will pour into the pool of water”. The organization must firstpay for licenses, i.e. guarantee specialist full legal security, and only then he agrees to start work.
So, the lack of licenses automatically causes the absence of a specialist, and this, in turn, automatically causes a complete mess in the computer infrastructure - its terrible cost, inefficiency, insecurity and insecurity. In the end, it turns out that an ill-conceived attempt to save immediately turns into irreversible losses. Note: the irreversibility of losses from the decision not to buy a license arises immediately, on the very first working day - while the losses themselves are stretched over time and will continue, gradually aggravating, during the whole time of doing business. That is infinite.
Of course, the subsequent purchase of licenses (and everyone will have to do it without exception, and in any case , believe me) will stop the growth of losses, but still will not return a single ruble. But - it will allow you to resume the search for a good specialist and even give a small chance that they will be crowned with success.
In times of serfdom, dismissal was problematic. The general director of an enterprise that mines ore without a license might not have been afraid that the system administrator would report it to the authorities or quit it. But since then, much has changed, and today a sensible leader treats all his employees with respect.
Many managers, desperate to find at least some kind of computer technician in Moscow, do not understand that the reason for this is the lack of documents for software. And they naively decide that it is necessary to outsource the maintenance of computers, entrusting the corporate contractor. This is a dangerous mistake. Finding such a primitive and unqualified "sysadmin" that he did not hear about any licenses and sees no risk for himself - this is still real, although it makes no sense :) But finding an equally stupid corporate contractor is already from the realm of fantasy. Entering into a computer maintenance contract with a contractor without software licenses is tantamount to a lifelong tribute to this contractor — just for not doing anything at all. You will have to pay not for his work, but simply for his consent formally, on paper,to enter into a contractual relationship with a rogue organization — and the absence of these licenses means such a status in modern business.
There can be no question of any demand for the fulfillment of obligations by the contractor in such a situation: neither can a leader who has saved something, nor can a “saved” manager sue in principle because he is constantly under the Damocles sword of lack of licenses. One has only to go talk on this topic in the context of any official authority - and the trap shut. The only question is whether it will happen a little earlier or a little later. Strangely enough, incompetent leaders quite often put this trap on themselves.
And, of course, no serious contractor for servicing computers without licenses today will agree. Therefore, it is necessary to choose a contractor from a limited number of the most irresponsible and incompetent outsiders-outsiders.
There is another legal danger. Due to the effect of autoprogramming and other features of the architecture of modern computers, which we have already talked about , a typical office network without a good programmer quickly turns into a real zoo of viruses.Do you know where those same botnets come from, which have recently terrified even large corporations and governments? Botnets live in those computers that are not serviced by anyone - or "serviced" only in words. If a botnet settles in your corporate network, it will mean that attacks against other computer networks will be made from your IP address. Most likely - on the network of large and serious organizations (small ones are usually not of interest), including state ones. And such attacks, of course, entail thorough investigations - often not only at the level of local authorities, but also at the level of Interpol.
If the traces of the attack lead to your office, then the consequences of this will be fundamentally different legally - depending on whether your organization complied with legislation related to computers or did not comply.
If you have the correct documents for all the software, you, from a legal point of view, find yourself in the position of a victim, a victim - that is, in the same position as those whose computer was attacked from your network. In other words, the availability of documents on the program will mean for the police that the attack did not happen thanks to, but in spite of your actions.
And in the absence of documents, your position will be completely different: in this case, it turns out that the attack occurred precisely because of your actions.The head has not concluded contracts? Not paid for official software? Did not take measures to prevent his business from harming others? This automatically means that its solutions led to the launch of programs obtained from an unknown source - that is, programs with unknown functionality, including those suspected of being infected. The presence of a virus in these programs caused the participation of his computers in the botnet and in the attack? Caused. Unfortunately, even in the absence of intent, wine arises here.
Those who think that the volume of legislative claims related to “unlicensed” is limited to the cost of programs and the interests of the right holders are mistaken. In practice, claims can be made not only on the fact of violation of the rights of the right holders, but also on the fact of the actions that caused the violation of the operation of third-party computer systems. In other words, the danger of your responsibility for someone to drop something on your computer once in a while, if there are no documents on the software, it increases many times over. This is another argument for not risking.
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Source: https://habr.com/ru/post/126101/
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