Software Piracy and Its Enforcement

In one line

Software piracy is copyright infringement, and the enforcement that works is a civil action with an order to seize the evidence before the defendant knows the case has started.

In the wording a student can write in an exam: software piracy is the unauthorised reproduction, distribution or use of a computer programme, actionable civilly as an infringement of copyright under section 51 of the Copyright Act, 1957 with the remedies of injunction, damages and account of profits under section 55, and punishable under section 63 where the infringement is knowing, with a power of seizure without warrant under section 64; and the same conduct will frequently also be a contravention of section 43 and an offence under section 66 of the Information Technology Act, 2000 where data has been copied from a computer resource without the owner's permission.

The forms piracy takes

End user piracy is the commonest and the least visible: a business with ten licences running the software on forty machines. It is reproduction in contravention of the conditions of a licence under the second limb of section 51(a)(i), and chapter 500 works it.

Hard disk loading is a dealer installing unlicensed software on machines it sells, which is section 51(b)(i), making for sale or selling infringing copies.

Counterfeiting is manufacturing and selling copies presented as genuine, which engages the Copyright Act and, where the packaging carries the owner's mark, the Trade Marks Act, 1999 as well.

Internet piracy is distribution through file-sharing, download sites and streaming, which is section 51(b)(ii) distribution and, for the platform, raises the intermediary question chapter 1360 works.

Client-server overuse is running software on a server accessed by more users than the licence permits.

Key generators and cracks are tools that defeat the licence check, which is section 65A of the Copyright Act, circumventing an effective technological measure with the intention of infringing, and chapter 500 works it.

The civil action, and why it is the real remedy

Section 55(1): where copyright in a work has been infringed, the owner is entitled to all such remedies by way of injunction, damages, accounts and otherwise as are conferred by law for the infringement of a right.

The proviso protects the innocent infringer. If the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff is not entitled to any remedy other than an injunction and a decree for the whole or part of the profits made by the defendant. So innocence removes damages and leaves the injunction and an account.

That proviso is almost never available in software cases, because a licence check, a copyright notice and a purchase price make it very difficult to say the defendant had no reasonable ground for believing copyright subsisted.