The law is harsh, but the devil is not so terrible. A few notes hot on the 146 article
Having talked a little in the comments to one of the entries relating to the sentence of Lopukhov, I found with interest the fact that many Habr visitors are familiar with the mechanisms of bringing the responsibility of persons violating copyright and related rights, rather superficially. To be honest, I initially did not want to comment on the event itself related to 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 convicted, and this example is very significant, 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. As for the moral and ethical view of the question, I will not voice it, because I do not like to engage in speculation on high-profile events and other people's grief.
Now get ready to read a lot. And if such a number of words bore you, then you can try to go straight to the end and familiarize yourself with my conclusions.
Great resonance in the Internet environment has caused a rather speculative statement that the Lopukhovs are judged as users. News sites, focusing on this event, by themselves want to increase the degree of intensity, they say "you can be the next." Let's look at the situation a little more. Part two of Article 146 of the Criminal Code informs us of the following disposition that is considered criminal: “Illegal use 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 here. It is clear that the text states that the acquisition, storage and transportation of goods for sale is criminal, while it is not clear whether the “illegal use of copyright objects” should be carried out for the purposes of sale. In fact, it should not be, which is somewhat vaguely specified in the Resolution of the Plenum of the Supreme Court of the Russian Federation of April 26, 2007 N 14 (“On the practice of the consideration by courts of criminal cases on violation of copyright, related, inventive and patent rights, as well as unlawful use of the trademark ").
Here it should be immediately noted that illegal use refers to ways of disposing of copyright 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 must be carried out without permission or a legal right to do so. In particular, with regard to copyright, we can say that we will be criminals in the event of illegal “acts” in the form of reproduction (roughly speaking, creating a copy), distribution, rental and the like. Any actions performed without the permission of the respective right holder, or even in violation of its prohibitions, will be illegal. The wording of article 146 only clarifies that if a person transports, stores or buys copies, intending to sell them later, he can also be considered a violator. Thus, from a legal point of view, both a person who has already committed a violation of copyright or related rights, and those who are going to do so and have made necessary preparations (for example, storage) can be held criminally liable. It is important to understand that one way or another the crime will always be complete, i.e. fully committed: a person either violates copyrights immediately, or attempts to violate them, but at the same time commits the actions necessary for the violation, which are considered criminal in themselves.
')
How does all this concern us? First, let's immediately distinguish between a merchant of pirated discs and a regular Internet user. But ... hmm, it seems this distinction is not. The decree already mentioned by me indicated that the sale of counterfeit copies of works or phonograms consists in their intentionally providing for compensation or donation to other persons in any way (for example, by selling, renting, free distribution for advertising purposes, donation, posting works on the Internet). Thus, theoretically, by storing pirated software on our disk, we can also become criminals ...
In fact, it’s too early to panic, because here you need to remember two more important factors:
1. Article 1273 of the Civil Code of the Russian Federation - Reproduction for personal use. The law openly tells us that for our relatives, if we don’t let them watch, play, listen, etc. to other people, then we can make a copy of the work, and then store it on our disk.
2. Only those actions that violated rights in the amount of 100 thousand rubles (large size) and 1 million rubles (especially large size) are a crime. I wrote more about this below.
In fact, this whole roundabout of laws and their interrelationships brings us to one simple deduction: theoretically, it’s possible to make anyone a person who prefers to download programs, movies and music instead of buying them a criminal. Practically, one should not worry too much: the reality of our life is such that, first, simple “users” are not needed by anyone, and, secondly, it is necessary to prove that they posted pirated content on the Internet (to prove that someone was just going to do it, and therefore kept at "something there" is almost unrealistic and there are no precedents for such cases), and also in such a way that they violated the rights of at least 100 thousand rubles (if the amount is less, the user will not be able to attract even for administrative responsibility). Thus, returning to the original prerequisites of the article: Lopukhovs were attracted not just as users of torrents - they actively created distributions, that is, they were not even just “siders”, but “releasers”. In this case, the family managed to jump over both obstacles at once, protecting ordinary users: they used works not for personal purposes, and they did it so actively that by the size of the damage (the size of the act) they eventually repeatedly exceeded the minimum amount needed to initiate a criminal case.
Thus, if from a moral point of view the event can be interpreted in different ways, then from the point of view of the law, everything is unequivocal: the Lopukhovs violated copyrights (it doesn’t even have to bind the sales target, as they dealt with obvious illegal distribution), causing damage to copyright holders in the amount of 38 billion rubles.
By the way, where does this amount come from? I will tell about it below.
There is no deciphering of the concept of damage even in the Supreme Court’s ruling mentioned above, but if we talk about the practice of its application, here everything is quite clear and logical. In this question, the main problem is rather the ratio of damage to compensation. This is especially true in the light of the fact that many habrovchane are piously confident that the 38 billion voiced by Lopukhov will now have to be paid. In fact, it is not.
According to the procedure for the consideration of criminal cases under article 146 of the Criminal Code of the Russian Federation, they provide for the participation of victims (right holders whose rights have been violated). In some cases, criminal cases may be initiated by a decision of the prosecutor and without such persons, but this is rare. More often, all the same in the case, one way or another, the right holders appear, which the courts even sometimes forcibly call to participate in the proceedings. Victims in the framework of the trial give testimony, answer questions from the judge, state their demands. But, in any case, by default it is considered that these same victims of money do not want money from the defendant. Needless to say, they will not receive them in this situation?
Criminal proceedings in Russia, in contrast to the United States, are structured in such a way that criminals by default do not owe anything to those who have suffered from their actions - they only have to the state. The payment of such a debt can be expressed both in the form of restrictions and imprisonment, and in the form of some other sanctions, such as a fine. Regarding article 146, it is worth noting that in terms of copyright infringement (separately in the first part, it also provides plagiarism, that is, attribution of authorship, but it does not concern the framework of my article), it provides for 2 degrees of crime, on which depend and scope of punishment. The base level is crimes, the cumulative cost of copies of works or phonograms or the rights to them exceeded 100 thousand rubles or more. For such crimes are possible, including punishments in the form of a fine of up to two hundred thousand rubles, or imprisonment for up to two years (I will immediately explain that I do not indicate all of the foreseen penalties provided for under this article), which corresponds to offense a little heavy. The third part of the article tells us that crimes committed with aggravating circumstances (if the amount exceeds 1 million rubles, the crime was committed by a group of persons by prior agreement, etc.) can be punished more strictly - with a fine of up to 500 thousand rubles, or imprisonment up to 6 years, and this is a crime of moderate severity. Here you also need to immediately pay attention to the fact that if possible, to prove an action in a group of persons, there is no need to prove the damage in the amount of 1 million - the already announced 100 thousand rubles will be enough.
The concept given in the above wording actually corresponds to the concept of damage, since the damage can roughly be said to be the size of the act recognized by the right holder. And it is calculated on the basis of calculations made by the representatives in the framework of the criminal process on this by people: experts and specialists. Primarily, this task falls to the expert, to whom the primary materials of the case fall. In fact, the expert is asked the following questions: to establish whether the seized materials have signs of counterfeitness and to name the cost of legal “versions” of such materials. His work is called expertise and it is on its basis that damage is calculated in most cases. Similar tasks can be applied to a specialist, but in a slightly different plane. If an expert in the valuation has the right to request data from the rights holders, or consult their price lists, without particularly checking the accuracy of such information, then the expert 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 Habr. Another thing is important here: the right holder really has the opportunity to voice the damage done to him, and to do it both independently and by “prompting” the expert, but such actions can be verified during a court hearing if the court considers the amount voiced implausible (including at the request of the defendant). By the way, giving false testimony is a criminal offense.
In fact, most major copyright holders have no reason to overestimate the amount of damage - the amount often turns out to be either too meager to try to pull it by the ears, or to be quite sufficient. I will give an example. We have a distribution on the tracker collection of several editions of Windows. Edition, for example, 7, the total value of which, for example, will be 20 thousand rubles. This edition was downloaded by 10 people. Multiply 20 thousand by 10 - we get 200 thousand. Criminal article is already there. Here, however, it is necessary to understand that the calculation of damage, tied to the number of downloads, is not an axiom: it must be substantiated and proved, as well as many other formulations. About this, again, let's talk a little later.
In the meantime, back to our sheep. We understand what damage is and how it is calculated. And what about the holders? They can set their own requirements, but in a separate order. Such claims are called lawsuit or civil. The rightholder, declared as a victim in the criminal case, has the right to apply for the recovery from the violator of a certain amount of money or make other demands. 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 may even be taken out in a separate case, which will be considered by a completely different court (already civil, not criminal). In addition, the claimed amount is subject to separate consideration. From here, by the way, the legs of the wording of article 1301 of the Civil Code of the Russian Federation grow: the right holder, along with the use of other applicable methods of protection and liability measures, has the right to demand from the offender instead of compensation for damages compensation: in the amount of from ten thousand rubles to five million rubles, at the discretion of the court; in double the value of copies of the work or in double the value 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 right holder has the right to independently make calculations, indicating the amount different from the criminal case file presented, and the court should consider the reasonableness of this amount. It should be borne in mind that the right holder has the right to reduce the amount of claims at his discretion, as well as the court can reduce them (and the court cannot raise them) - this is completely legitimate and justified. In addition, it is worth considering that neither the damage nor the compensation does not include any moral sufferings of the right holder and are not calculated taking into account the loss of profits, can be based both on the cost of copies of works, and on the cost of rights, and the sentence itself is only objectively affected classification of the case according to 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 not be given more than the maximum possible level of punishment. All horror stories in this case can be attributed purely to the copyright holder and his greed, and therefore, from a financial point of view, it is worth fearing the lawsuits, while in their absence it is not a question of returning money to individuals. In the case of the Lopukhovs, we observe a situation in which practically all major holders of lawsuits did not file claims, and therefore the notorious 38 billion is quite spherical and, in principle, if it were even 10 times larger, we would not see much of a difference.
Based on my text, some might have the impression that I would like to present the 146 article as some kind of minor trouble. In fact, it is not. Despite the fact that you will not be shot, the sentence on it still means that the person committed the crime with all the ensuing consequences (for example, the sentence will be accompanied by a corresponding note “where necessary”). The whole point is the practice of sentencing in such cases. Almost the overwhelming number of cases ends with the imposition of conditional terms, regardless of the severity and damage. Even without fines. It is often the case that claims are not filed by the right holders, or are being filed, but the sums turn out to be minimal. Based on practice, the judges prefer to significantly reduce the claimed amount, and therefore the claims in the end are rather a purely nominal action. However, it may be an impossible task to give 20 thousand rubles for someone. By the way, for this reason, the suspended sentence, in spite of the fact that it seems more terrible, in fact turns out to be more humane for convicts than a fine.
But the real sentences are quite rare, and they fall into cases of relapse. And that is not always. The overwhelming majority of such cases relate to the processes of the so-called “barygam” - merchants and, less commonly, owners of retail outlets selling counterfeit disks. Before the ardor of such people is completely cooled down, they may have time to take part in several lawsuits and each time get off on probation.
Another important question that most certainly interests many is the responsibility for seeding. As we have already established, the releaser is the unconditional goal of the law enforcement agencies if they are going to initiate a criminal case on the fact of copyright infringement. But are the "victims" siders? Purely technically - yes, because formally they are also engaged in distribution. But if we talk about the practice of proving in such cases, which is already quite small, it turns out that it is extremely difficult to attract a sider. If we consider criminal cases under article 146 within a 100 point system of proving complexity, then the case of releasers can, perhaps, be characterized by 70–80 point complexity, while I would give all 100 points to a conditional case involving a sider. Judge for yourself: in this case it is necessary not only to fix the fact of the violation and prove the guilt, but also to determine the size of the act. In the latter case, with releasers, everything is simple: we take the statistics of the tracker and consider their distributions, but how to calculate the damage caused by a simple sider? He could give out an illegal copy of 1000 people, and he could give it to one, and he could not give it to anyone at all - it could be very difficult to prove the accuracy of real numbers. And no one has canceled the guilt. We all remember the saying “Ignorance of the law does not absolve from responsibility”, but it does not apply to guilt. If a releaser can be considered a person who understands the tasks of his activity perfectly well, and therefore he has intent, then it’s more difficult to say about the sider, especially considering that the lack of understanding of the principle of torrents may not be an excuse, but a reality based on technical illiteracy of a person. Thus, if, by virtue of the wording of Article 146, siders are criminals, then in the light of the rest of the nuances this is not at all so obvious.
And now let's talk about my favorite topic: that "Russia is the birthplace of elephants." But we will begin with Germany. In this wonderful country, with a lot of trashed Soviet trucks, there is a fairly strict legislation in the field of copyright protection. For example, a person who has copyrights or has a power of attorney to protect such rights can absolutely calmly demand from any person to show the contents of his laptop, and in case of refusal, contact the nearest police officer with such requirements. In the same Germany, ordinary users of torrents can be prosecuted, not even siders, but simply leechers. And they, by the way, with great pleasure will pass their own providers. In another remarkable country - France, already driven by German and American tanks, there is a rule of "Three warnings" (it is also HADOPI law), addressed to ordinary users who violate copyrights (downloading pirated content). The formulation of this rule allows not only to forcibly deprive the citizens of the country of access to the Internet, but also provides a documented reason for the further filing of claims by the right holders. It would not sound strange to you, but Russia in this regard has extremely liberal legislation. There is not even the rule “The severity of Russian laws is compensated for by the fact that they are not enforced”, since the legislation is more than mild, which, by the way, causes outrage of some international organizations. Just think: while the resident of Germany, grasped by the hand, will be forced to put out a thick stack of money, in our country nothing threatens ordinary users at all. The only loophole is a purely civil lawsuit, the evidence base for which the right holder will have to prove on its own, and the size of the claims may be limited to a relatively small amount, which, among other things, the court can still reduce. In fact, even if someone wanted to do this kind of “business,” he would very quickly go bankrupt.
The procedure for prosecution and sentencing in cases of copyright infringement on the Internet is quite complicated and confusing. Attempting to talk about it invariably rests on the need to interpret a multitude of concepts and comment on various auxiliary mechanisms. How strongly the position of the right holder influences the particular case, what will happen if he does not want to confess to the victim, how the examinations are written and the evidence is collected, how the fact of the violation is fixed, and much more - all this is a reason for writing a doctoral work in jurisprudence, but not a topic for a small article. Initially, I planned to write a short note with brief explanations, but in the end I presented a whole report on 5 and a half pages of a text editor. And this is despite the fact that some other person with a law degree may well write a cardinally opposite conclusion. And he will be right in his own way. I do not pretend to the absolute correctness of my conclusions, but, nevertheless, I fulfilled my task: I outlined the general outline of the main problem points on this issue.
If you try to summarize all of the above, I can express the result in the form of three theses:
1. Criminal prosecution under article 146 is such prosecution, which is impossible to conduct without the actual guilt of the defendant. To take an innocent person and “sign” him under this article is extremely difficult, if not impossible.
2. Simple users can sleep almost peacefully: the criminal prosecution is unlikely to touch them even if they are siders, and civilians are too difficult and unprofitable 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 penny at all and will only get off with a suspended sentence.
Thank you all for your attention.
PS A court case 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 msuhanov for pointing out some inaccuracies in the article.
Now get ready to read a lot. And if such a number of words bore you, then you can try to go straight to the end and familiarize yourself with my conclusions.
To attract or not to attract?
Great resonance in the Internet environment has caused a rather speculative statement that the Lopukhovs are judged as users. News sites, focusing on this event, by themselves want to increase the degree of intensity, they say "you can be the next." Let's look at the situation a little more. Part two of Article 146 of the Criminal Code informs us of the following disposition that is considered criminal: “Illegal use 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 here. It is clear that the text states that the acquisition, storage and transportation of goods for sale is criminal, while it is not clear whether the “illegal use of copyright objects” should be carried out for the purposes of sale. In fact, it should not be, which is somewhat vaguely specified in the Resolution of the Plenum of the Supreme Court of the Russian Federation of April 26, 2007 N 14 (“On the practice of the consideration by courts of criminal cases on violation of copyright, related, inventive and patent rights, as well as unlawful use of the trademark ").
Here it should be immediately noted that illegal use refers to ways of disposing of copyright 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 must be carried out without permission or a legal right to do so. In particular, with regard to copyright, we can say that we will be criminals in the event of illegal “acts” in the form of reproduction (roughly speaking, creating a copy), distribution, rental and the like. Any actions performed without the permission of the respective right holder, or even in violation of its prohibitions, will be illegal. The wording of article 146 only clarifies that if a person transports, stores or buys copies, intending to sell them later, he can also be considered a violator. Thus, from a legal point of view, both a person who has already committed a violation of copyright or related rights, and those who are going to do so and have made necessary preparations (for example, storage) can be held criminally liable. It is important to understand that one way or another the crime will always be complete, i.e. fully committed: a person either violates copyrights immediately, or attempts to violate them, but at the same time commits the actions necessary for the violation, which are considered criminal in themselves.
')
How does all this concern us? First, let's immediately distinguish between a merchant of pirated discs and a regular Internet user. But ... hmm, it seems this distinction is not. The decree already mentioned by me indicated that the sale of counterfeit copies of works or phonograms consists in their intentionally providing for compensation or donation to other persons in any way (for example, by selling, renting, free distribution for advertising purposes, donation, posting works on the Internet). Thus, theoretically, by storing pirated software on our disk, we can also become criminals ...
In fact, it’s too early to panic, because here you need to remember two more important factors:
1. Article 1273 of the Civil Code of the Russian Federation - Reproduction for personal use. The law openly tells us that for our relatives, if we don’t let them watch, play, listen, etc. to other people, then we can make a copy of the work, and then store it on our disk.
2. Only those actions that violated rights in the amount of 100 thousand rubles (large size) and 1 million rubles (especially large size) are a crime. I wrote more about this below.
In fact, this whole roundabout of laws and their interrelationships brings us to one simple deduction: theoretically, it’s possible to make anyone a person who prefers to download programs, movies and music instead of buying them a criminal. Practically, one should not worry too much: the reality of our life is such that, first, simple “users” are not needed by anyone, and, secondly, it is necessary to prove that they posted pirated content on the Internet (to prove that someone was just going to do it, and therefore kept at "something there" is almost unrealistic and there are no precedents for such cases), and also in such a way that they violated the rights of at least 100 thousand rubles (if the amount is less, the user will not be able to attract even for administrative responsibility). Thus, returning to the original prerequisites of the article: Lopukhovs were attracted not just as users of torrents - they actively created distributions, that is, they were not even just “siders”, but “releasers”. In this case, the family managed to jump over both obstacles at once, protecting ordinary users: they used works not for personal purposes, and they did it so actively that by the size of the damage (the size of the act) they eventually repeatedly exceeded the minimum amount needed to initiate a criminal case.
Thus, if from a moral point of view the event can be interpreted in different ways, then from the point of view of the law, everything is unequivocal: the Lopukhovs violated copyrights (it doesn’t even have to bind the sales target, as they dealt with obvious illegal distribution), causing damage to copyright holders in the amount of 38 billion rubles.
By the way, where does this amount come from? I will tell about it below.
Pay or not pay?
There is no deciphering of the concept of damage even in the Supreme Court’s ruling mentioned above, but if we talk about the practice of its application, here everything is quite clear and logical. In this question, the main problem is rather the ratio of damage to compensation. This is especially true in the light of the fact that many habrovchane are piously confident that the 38 billion voiced by Lopukhov will now have to be paid. In fact, it is not.
According to the procedure for the consideration of criminal cases under article 146 of the Criminal Code of the Russian Federation, they provide for the participation of victims (right holders whose rights have been violated). In some cases, criminal cases may be initiated by a decision of the prosecutor and without such persons, but this is rare. More often, all the same in the case, one way or another, the right holders appear, which the courts even sometimes forcibly call to participate in the proceedings. Victims in the framework of the trial give testimony, answer questions from the judge, state their demands. But, in any case, by default it is considered that these same victims of money do not want money from the defendant. Needless to say, they will not receive them in this situation?
Criminal proceedings in Russia, in contrast to the United States, are structured in such a way that criminals by default do not owe anything to those who have suffered from their actions - they only have to the state. The payment of such a debt can be expressed both in the form of restrictions and imprisonment, and in the form of some other sanctions, such as a fine. Regarding article 146, it is worth noting that in terms of copyright infringement (separately in the first part, it also provides plagiarism, that is, attribution of authorship, but it does not concern the framework of my article), it provides for 2 degrees of crime, on which depend and scope of punishment. The base level is crimes, the cumulative cost of copies of works or phonograms or the rights to them exceeded 100 thousand rubles or more. For such crimes are possible, including punishments in the form of a fine of up to two hundred thousand rubles, or imprisonment for up to two years (I will immediately explain that I do not indicate all of the foreseen penalties provided for under this article), which corresponds to offense a little heavy. The third part of the article tells us that crimes committed with aggravating circumstances (if the amount exceeds 1 million rubles, the crime was committed by a group of persons by prior agreement, etc.) can be punished more strictly - with a fine of up to 500 thousand rubles, or imprisonment up to 6 years, and this is a crime of moderate severity. Here you also need to immediately pay attention to the fact that if possible, to prove an action in a group of persons, there is no need to prove the damage in the amount of 1 million - the already announced 100 thousand rubles will be enough.
The concept given in the above wording actually corresponds to the concept of damage, since the damage can roughly be said to be the size of the act recognized by the right holder. And it is calculated on the basis of calculations made by the representatives in the framework of the criminal process on this by people: experts and specialists. Primarily, this task falls to the expert, to whom the primary materials of the case fall. In fact, the expert is asked the following questions: to establish whether the seized materials have signs of counterfeitness and to name the cost of legal “versions” of such materials. His work is called expertise and it is on its basis that damage is calculated in most cases. Similar tasks can be applied to a specialist, but in a slightly different plane. If an expert in the valuation has the right to request data from the rights holders, or consult their price lists, without particularly checking the accuracy of such information, then the expert 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 Habr. Another thing is important here: the right holder really has the opportunity to voice the damage done to him, and to do it both independently and by “prompting” the expert, but such actions can be verified during a court hearing if the court considers the amount voiced implausible (including at the request of the defendant). By the way, giving false testimony is a criminal offense.
In fact, most major copyright holders have no reason to overestimate the amount of damage - the amount often turns out to be either too meager to try to pull it by the ears, or to be quite sufficient. I will give an example. We have a distribution on the tracker collection of several editions of Windows. Edition, for example, 7, the total value of which, for example, will be 20 thousand rubles. This edition was downloaded by 10 people. Multiply 20 thousand by 10 - we get 200 thousand. Criminal article is already there. Here, however, it is necessary to understand that the calculation of damage, tied to the number of downloads, is not an axiom: it must be substantiated and proved, as well as many other formulations. About this, again, let's talk a little later.
In the meantime, back to our sheep. We understand what damage is and how it is calculated. And what about the holders? They can set their own requirements, but in a separate order. Such claims are called lawsuit or civil. The rightholder, declared as a victim in the criminal case, has the right to apply for the recovery from the violator of a certain amount of money or make other demands. 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 may even be taken out in a separate case, which will be considered by a completely different court (already civil, not criminal). In addition, the claimed amount is subject to separate consideration. From here, by the way, the legs of the wording of article 1301 of the Civil Code of the Russian Federation grow: the right holder, along with the use of other applicable methods of protection and liability measures, has the right to demand from the offender instead of compensation for damages compensation: in the amount of from ten thousand rubles to five million rubles, at the discretion of the court; in double the value of copies of the work or in double the value 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 right holder has the right to independently make calculations, indicating the amount different from the criminal case file presented, and the court should consider the reasonableness of this amount. It should be borne in mind that the right holder has the right to reduce the amount of claims at his discretion, as well as the court can reduce them (and the court cannot raise them) - this is completely legitimate and justified. In addition, it is worth considering that neither the damage nor the compensation does not include any moral sufferings of the right holder and are not calculated taking into account the loss of profits, can be based both on the cost of copies of works, and on the cost of rights, and the sentence itself is only objectively affected classification of the case according to 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 not be given more than the maximum possible level of punishment. All horror stories in this case can be attributed purely to the copyright holder and his greed, and therefore, from a financial point of view, it is worth fearing the lawsuits, while in their absence it is not a question of returning money to individuals. In the case of the Lopukhovs, we observe a situation in which practically all major holders of lawsuits did not file claims, and therefore the notorious 38 billion is quite spherical and, in principle, if it were even 10 times larger, we would not see much of a difference.
Be afraid or not be afraid
Based on my text, some might have the impression that I would like to present the 146 article as some kind of minor trouble. In fact, it is not. Despite the fact that you will not be shot, the sentence on it still means that the person committed the crime with all the ensuing consequences (for example, the sentence will be accompanied by a corresponding note “where necessary”). The whole point is the practice of sentencing in such cases. Almost the overwhelming number of cases ends with the imposition of conditional terms, regardless of the severity and damage. Even without fines. It is often the case that claims are not filed by the right holders, or are being filed, but the sums turn out to be minimal. Based on practice, the judges prefer to significantly reduce the claimed amount, and therefore the claims in the end are rather a purely nominal action. However, it may be an impossible task to give 20 thousand rubles for someone. By the way, for this reason, the suspended sentence, in spite of the fact that it seems more terrible, in fact turns out to be more humane for convicts than a fine.
But the real sentences are quite rare, and they fall into cases of relapse. And that is not always. The overwhelming majority of such cases relate to the processes of the so-called “barygam” - merchants and, less commonly, owners of retail outlets selling counterfeit disks. Before the ardor of such people is completely cooled down, they may have time to take part in several lawsuits and each time get off on probation.
Another important question that most certainly interests many is the responsibility for seeding. As we have already established, the releaser is the unconditional goal of the law enforcement agencies if they are going to initiate a criminal case on the fact of copyright infringement. But are the "victims" siders? Purely technically - yes, because formally they are also engaged in distribution. But if we talk about the practice of proving in such cases, which is already quite small, it turns out that it is extremely difficult to attract a sider. If we consider criminal cases under article 146 within a 100 point system of proving complexity, then the case of releasers can, perhaps, be characterized by 70–80 point complexity, while I would give all 100 points to a conditional case involving a sider. Judge for yourself: in this case it is necessary not only to fix the fact of the violation and prove the guilt, but also to determine the size of the act. In the latter case, with releasers, everything is simple: we take the statistics of the tracker and consider their distributions, but how to calculate the damage caused by a simple sider? He could give out an illegal copy of 1000 people, and he could give it to one, and he could not give it to anyone at all - it could be very difficult to prove the accuracy of real numbers. And no one has canceled the guilt. We all remember the saying “Ignorance of the law does not absolve from responsibility”, but it does not apply to guilt. If a releaser can be considered a person who understands the tasks of his activity perfectly well, and therefore he has intent, then it’s more difficult to say about the sider, especially considering that the lack of understanding of the principle of torrents may not be an excuse, but a reality based on technical illiteracy of a person. Thus, if, by virtue of the wording of Article 146, siders are criminals, then in the light of the rest of the nuances this is not at all so obvious.
And now let's talk about my favorite topic: that "Russia is the birthplace of elephants." But we will begin with Germany. In this wonderful country, with a lot of trashed Soviet trucks, there is a fairly strict legislation in the field of copyright protection. For example, a person who has copyrights or has a power of attorney to protect such rights can absolutely calmly demand from any person to show the contents of his laptop, and in case of refusal, contact the nearest police officer with such requirements. In the same Germany, ordinary users of torrents can be prosecuted, not even siders, but simply leechers. And they, by the way, with great pleasure will pass their own providers. In another remarkable country - France, already driven by German and American tanks, there is a rule of "Three warnings" (it is also HADOPI law), addressed to ordinary users who violate copyrights (downloading pirated content). The formulation of this rule allows not only to forcibly deprive the citizens of the country of access to the Internet, but also provides a documented reason for the further filing of claims by the right holders. It would not sound strange to you, but Russia in this regard has extremely liberal legislation. There is not even the rule “The severity of Russian laws is compensated for by the fact that they are not enforced”, since the legislation is more than mild, which, by the way, causes outrage of some international organizations. Just think: while the resident of Germany, grasped by the hand, will be forced to put out a thick stack of money, in our country nothing threatens ordinary users at all. The only loophole is a purely civil lawsuit, the evidence base for which the right holder will have to prove on its own, and the size of the claims may be limited to a relatively small amount, which, among other things, the court can still reduce. In fact, even if someone wanted to do this kind of “business,” he would very quickly go bankrupt.
Instead of conclusion
The procedure for prosecution and sentencing in cases of copyright infringement on the Internet is quite complicated and confusing. Attempting to talk about it invariably rests on the need to interpret a multitude of concepts and comment on various auxiliary mechanisms. How strongly the position of the right holder influences the particular case, what will happen if he does not want to confess to the victim, how the examinations are written and the evidence is collected, how the fact of the violation is fixed, and much more - all this is a reason for writing a doctoral work in jurisprudence, but not a topic for a small article. Initially, I planned to write a short note with brief explanations, but in the end I presented a whole report on 5 and a half pages of a text editor. And this is despite the fact that some other person with a law degree may well write a cardinally opposite conclusion. And he will be right in his own way. I do not pretend to the absolute correctness of my conclusions, but, nevertheless, I fulfilled my task: I outlined the general outline of the main problem points on this issue.
If you try to summarize all of the above, I can express the result in the form of three theses:
1. Criminal prosecution under article 146 is such prosecution, which is impossible to conduct without the actual guilt of the defendant. To take an innocent person and “sign” him under this article is extremely difficult, if not impossible.
2. Simple users can sleep almost peacefully: the criminal prosecution is unlikely to touch them even if they are siders, and civilians are too difficult and unprofitable 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 penny at all and will only get off with a suspended sentence.
Thank you all for your attention.
PS A court case 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 msuhanov for pointing out some inaccuracies in the article.
Source: https://habr.com/ru/post/284866/
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