From:
http://elc.co.za/article.php?subaction=showfull&id=1175875740&archive=&start_from=&ucat=7&
The big software piracy secret: it's not a crime!
While watching the trailers at the cinema, an advert against pirating of music, videos and software was flighted. The punchline being: "theft is a crime, piracy is theft" ... obvious implication, piracy is equal to crime. So what is the big secret? It's really simple: pirating software/movies/DVDs/music for individual use is a copyright violation, but it is not a crime! When I say it is a copyright violation, that means that the owner of the copyright has a civil action against the copyright violator, and the criminal justice system, police cyber inspectors or whatever have nothing whatsoever to do with it. So what does this mean? It means that if you have "pirate" software on your computer, the worst thing that could happen to you is that the owner of the software, for example Microsoft if it is a pirated copy of Windows, may institute legal proceedings against you to recover the damages it may have suffered as a result of your actions. There is no crime, so no fines, no arrests or anything else.
Unfortunately it appears that advertisements in the media have served to confuse things even further. In fact I have even heard people talk of the police arresting parties with obvious copies of software on computer disks at roadblocks and similar urban legends. While at my local police station the other day, I asked similar questions about piracy and copyright, and ended up having a interesting discussion with several police officers in charge office, all of whom were completely confused by the legal principles involved. So, is there a crime of piracy? Yes there definitely is, and it is covered by Section 27 of the Copyright act which introduces criminal penalties for certain specific breaches of copyright: 27 Penalties and proceedings in respect of dealings which infringe copyright:
(1) Any person who at a time when copyright subsists in a work, without
the authority of the owner of the copyright-
(a) makes for sale or hire;
(b) sells or lets for hire or by way of trade offers or exposes for
sale or hire;
(c) by way of trade exhibits in public;
(d) imports into the Republic otherwise than for his private or domestic use;
(e) distributes for purposes of trade; or
(f) distributes for any other purposes to such an extent that the owner of the copyright is prejudicially affected, articles which he knows to be infringing copies of the work, shall be guilty of an offence.
In essence, these can be summed up as anything to do with reproducing for sale or selling copyright materials a criminal offence, but having copyright material for private or domestic use is definitely not a crime.
And in section 6, the Act outlines the penalties
6) A person convicted of an offence under this section shall be liable-
(a) in the case of a first conviction, to a fine not exceeding five thousand rand or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment, for each article to which the offence relates;
(b) in any other case, to a fine not exceeding ten thousand rand or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment, for each article to which the offence relates.
But even in a careful reading of sections (a) to (f), there is no mention of breach of copyright for personal or domestic use, so the section does not apply in this regard. In essence, criminal copyright violations are only those where they are done for the purposes of selling, hiring or business-related, or freely distributed according to section (f), "to such an extent that the owner of the copyright is prejudicially affected". It would therefore be enormously difficult to show that Microsoft had been prejudicially affected by my loaning out of my Windows disks to a friend, whereas if I was handing out hundreds of free copies to the public that would be a different story.
So to sum up, software piracy is not automatically crime. It is only a crime when copies are made for hire or purchase or some other business-related profit-making activity. Where one user "pirates" software for private or individual use, it is only a civil violation, not a criminal one. So, what is the legal effect of a civil violation? It's really quite simple actually: the owner of the copyright has a legal action against the copyright violator, and he may sue the copyright violator to recover his financial losses that he would otherwise have made, e.g. the value of the software licensing fee! So should I have a pirated piece of software on my home computer, which I'm using for private use and not distributing copies of for sale or hire or anything else similar, the worst that can happen to me is the owner of that software can sue me for the license fees I should have paid for the software! (Plus legal fees if one were stupid enough to go to court.)
So there you have it, the big secret is out: software piracy is not a crime when done for private or individual use, and the worst that can happen to the software pirated, is he or she may be sued for the value of the license he or she should have paid. So if I return to the movie advert, piracy is not theft, because theft is a crime, piracy is a copyright violation, and only under certain circumstances is this copyright violation a crime. Needless to say I still enormously enjoyed watching Star Wars episode III, and not worrying about the cyber inspectors finding all my pirated software on my home computer. One thing that must be noted however; when one comes to file sharing, e.g. Kazaa/Napster and so forth, that is a different kettle of fish entirely.
