What is piracy from the perspective of Russian legislation

International Law

Before moving directly to Russian legislation, let's understand where it comes from.

At the international level, copyright protection is handled by the World Intellectual Property Organization, or WIPO for short. It was founded in 1967, and its initial goal was to protect literary and artistic works. Russia inherited its membership status from the Soviet Union, which joined in 1970.

The main document of WIPO is the Berne Convention for the Protection of Literary and Artistic Works from 1886. WIPO member countries meet every two years to discuss and vote on amendments to the convention and to issue new international treaties. However, the convention and treaties only define the basic norms and concepts of copyright. Each country establishes specific laws and penalties for their violation based on its own realities. For example, the punishment for illegally downloading a movie in Russia and the United States will be different, even though both countries are members of WIPO and have signed the same agreements.

Software from the Perspective of Copyright

Initially, most laws were written in relation to historical objects of copyright, such as images, music, song lyrics, and literary works. To avoid rewriting all international treaties, and to prevent countries from having to significantly change their legal frameworks, software was simply equated to literary works (Article 4 of the WIPO Copyright Treaty of December 1996 and Article 1261 of the Civil Code of the Russian Federation). This is quite justified, as software is essentially lines of code written by people.

However, this approach is only correct for software without a graphical interface. If we are talking about complex software, such as modern computer games, then in addition to the code, we must also consider the presence of copyright for graphical (character design, interface, etc.) and audio components (music, sound effects, voice acting). Additionally, the texts of dialogues and scripts in games are also considered literary works.

Patent and Copyright

Despite their similarities, patents and copyright should not be confused. Yes, both are designed to protect the results of human creative activity, but while copyright protects works such as texts, images, music, and sculptures, patents exist to protect inventions in various industrial fields.

A patent is issued for a specific implementation, so there can be several patents for the same invention but with different implementations. For example, if a game company patents a certain game mechanic, in addition to describing the general principles, the patent will also describe how this mechanic is implemented using algorithms and/or software code. If an electronics manufacturer patents a certain "joy stick," in addition to images, the patent will include a description of its construction, the interaction of individual parts, the manufacturing process (if the manufacturing method is patented), and other important aspects of the invention.

Also, copyright does not require any registration; it is assigned to the author from the moment the copyrighted object is published publicly. Copyright lasts for the lifetime of the author and 70 years (Civil Code of the Russian Federation) after their death. A patent, on the other hand, is issued by a special government agency and is valid for 5 to 30 years (Civil Code of the Russian Federation).

Part I — Piracy

Strictly speaking, there is no such term as "piracy" in copyright law; it is merely a generalized concept adopted in everyday language and media for convenience. The correct legal definition would be "illegal use of copyrighted materials." However, I will still use the term "piracy" because it is more convenient.

In this section, I will describe, in order, from the most serious offenses that can land you in prison to the mildest ones. I will focus exclusively on everyday violations of the law that most people commit and will not delve into topics like plagiarism.

Circumventing DRM Protection

This includes everything from using "cracks" for games to "chipping" consoles. Such actions fall under Articles 272 and 273 of the Russian Criminal Code and are punishable, depending on the severity of the offense, by a fine and/or imprisonment from one to seven years.

Real cases:

1. One year in prison for selling a modded PS3 (Lipetsk).

2. One and a half years for a modded Xbox 360 (Saratov).

3. Fine for a modded PS3 (Lipetsk).

An attentive reader will notice that these cases only concern the sale of modded consoles, not modding for personal use. This can be explained by an old joke about Elusive Joe:

A small town in the western American steppe. A saloon. Two cowboys, a local and a visitor, are sitting at a table drinking whiskey. Suddenly, someone rushes past at high speed, firing guns in all directions. No one in the saloon bats an eye.

The visitor asks the local: "Bill?"

"Yes, Harry?"

"What was that, Bill?"

"That was Elusive Joe, Harry."

"Why do they call him Elusive Joe, Bill?"

"Because no one has ever caught him, Harry."

"Why hasn't anyone caught him, Bill?"

"Because no one gives a damn about him, Harry."

If you read parts 1 and 2 of Article 272 of the Russian Criminal Code, it doesn't matter whether a person sells a hacked device or not. Law enforcement agencies are usually not interested in such offenders because, at worst, they face a symbolic fine. However, it's important to remember that the absence of punishment does not make the act legal, and you should be cautious if you decide to sell your modded console.

Illegal Use and Distribution of Unlicensed Copies

You might want to say: "Sanya, what distribution? We're not market vendors selling discs in kiosks." But I ask you: "Have you ever used torrents?"

Yes, it's that simple. No one says that distribution is limited to discs. The internet is a powerful tool for distribution, far more massive than discs in kiosks. A simple torrent upload of a game or movie can lead to charges under parts 2 and 3 of Article 146 of the Russian Criminal Code, which can result in up to six years in prison. I want to emphasize how easy it is to face criminal punishment thanks to the internet.

According to the note to the article, a large-scale violation starts at 100,000 rubles, and an especially large-scale violation starts at 1 million rubles. By dividing these numbers by the price of a full-price game, we get:

Large-scale violation: just 15 copies;

Especially large-scale violation: 143 copies.

For such volumes, you can get 2 and 6 years, respectively. Distributing this many copies is not a problem, especially if we're talking about a hot new release. Next time you're asked not to leave a torrent upload, think twice, because even if you're not the uploader, it makes you an accomplice to the crime.

By the way, you can also fall under this article if you sell a modded console or computer with a couple of dozen pre-installed pirated games. In such cases, you can be charged under three articles at once: 146, 272, and 273 of the Russian Criminal Code.

Real cases:

1. Four years probation for a family over movies (Moscow);

2. Three years probation for movies (Yakutsk);

3. Over 1200 cases in two years (Russia).

Don't be fooled by the fact that I only provided examples of cases with probation. Since we're talking about violations of the Criminal Code, information about specific cases doesn't often make it to the media. Each case is considered separately, and it's quite possible to get real prison time. For example, the Lopukhov family (case 1) only got probation because they had young children.

Using Unlicensed Software at Work

I think many readers are system administrators. This part is for them. Since a system administrator is a person using their official position, they can face up to 6 years in prison and a fine under Articles 146 and 273 of the Russian Criminal Code.

Real cases:

1. 15 thousand rubles fine for a sysadmin, 1.5 years for a director (Pervouralsk);

2. 3 years probation for a sysadmin (Pyatigorsk).

Prosecutors are usually not very interested in the offenses of ordinary workers and will try to go after the company owner. But a system administrator is almost always an accomplice to the crime, so they should remember that committing a crime under someone's orders is still committing a crime.

Selling Pirated Games in Small Quantities

Moving from the Criminal Code to the Civil and Administrative Codes. If you sell a pirated disc and the damage is less than 100,000 rubles, you will be punished under part 1 of Article 7.12 of the Administrative Code:

Fine up to 2000 rubles

Confiscation of equipment

In other words, you can literally lose your beloved computer/console, as it is considered a tool for committing the crime.

In addition to the administrative article, the copyright holder can demand compensation from you under Article 1301 of the Civil Code. Under this article, you will be required to pay double the cost of the "pirated" product. That is, for each game worth $70, you will pay $140.

Unfortunately, or perhaps fortunately, I couldn't find any cases where ordinary people were prosecuted under these articles. Here, Elusive Joe comes into play again, and the police's reluctance to go to court over ordinary workers or kids who just want to play games. And the media isn't very interested in writing about someone being fined 2000 rubles.

What if I buy a pirated game for myself?

Article 7.12 of the Administrative Code only applies when the purpose of use is to generate income. If a pirated game is purchased for personal use and the total amount is less than 100,000 rubles, no administrative or criminal liability will follow.

In this case, the only punishment could be under 1301 of the Civil Code, meaning you would have to pay double the cost of the pirated product to the copyright holder. But this only happens if the copyright holder sues you.

By the way, if the total value of the pirated software found in your possession exceeds 100,000 rubles, it becomes a criminal offense under Article 146 of the Criminal Code, which I mentioned earlier. So, be careful if you have a whole collection of pirated games or a flash drive with movies and TV shows at home.

Part II — Not Piracy Per Se

This part is about various tools that, by themselves, do not violate copyright. There are no specific articles for these cases, and they do not fall under the articles I mentioned earlier. However, everything depends on how these tools are used.

Console Emulators

I think many people don't need an explanation that emulators themselves are not tools for piracy. But let's first understand why this is the case and whether it's always true.

Legal emulators do not contain any parts of the original system's code, its BIOS, DRM keys, or any other copyrighted materials from the original console manufacturer. In other words, they are completely independent products and therefore legal. However, all responsibility lies with the person using the emulator.

According to Article 1280 of the Civil Code, you have the right to make a copy (image) of a game for use on your own technical devices. But the most important thing is that you can only use this image after the original copy has been destroyed or damaged:

Part 1, Clause 2 of Article 1280 of the Civil Code states:

To make a copy of a computer program or database, provided that this copy is intended only for archival purposes or to replace a legally acquired copy in cases where such a copy is lost, destroyed, or has become unusable.

If you decide to play games on an emulator that you didn't purchase, it will be a violation of Article 146 of the Criminal Code or Article 7.12 of the Administrative Code, depending on the total value of the games. You also cannot legally use a game image downloaded from the internet and justify it by having a purchased licensed game. To avoid breaking the law, you must run the game from the original media or create a dump from your own copy.

Flash Cartridges

All retro gaming enthusiasts are probably tense now, but likely not surprised.

For those who don't know, let me explain what a Flash cartridge is. It's a device that represents an "empty" cartridge for a console, without a game. The user can write some software, such as a game image, to the cartridge's memory and run it on the console.

I think many have already realized that the situation here is the same as with emulators. As soon as you write an unlicensed game image to it, you immediately violate either Article 146 of the Criminal Code or Article 7.12 of the Administrative Code. So, what can you use them for legally? Well, for example, to run your own or freely distributed software. No one is stopping you from writing your own game and playing it using such a cartridge. You can also use your own game images made in accordance with Article 1280 of the Civil Code.

Also, with such cartridges, it's not always clear how they affect the console's DRM system. The cartridges I know of only pretend to be original and do not fall under Article 272 of the Criminal Code, but this can still be classified as neutralizing protection measures, which is prohibited by Article 273 of the Criminal Code. In this case, there is no clear answer; it all depends on the specific cartridge and console.

Part III — Not Piracy

Now I want to talk about what is not considered piracy under any circumstances. Most often, when people classify the following as piracy, they are guided by two principles:

First — It violates the license agreement.

A person can only be recognized as a "pirate" if there are legal grounds. Even if a person violates a contract, it does not mean that they have become a criminal from a legal standpoint. Moreover, contract terms that contradict the law are void (Art. 168 and 422 of the Civil Code of the Russian Federation).

Second — The rights holder will lose money.

Copyright laws are indeed created to protect the financial rights of the author, but this does not mean that any lost profit is a violation of copyright.

Now to specific examples:

Buying and Selling Used Games on Physical Media

I have seen people trying to equate the secondary market for game discs with piracy. Honestly, I think many of these people are just hypocrites trying to tarnish players who are completely clean from a legal standpoint. However, it is possible that some are genuinely mistaken, so this point requires clarification.

Article 1272 of the Civil Code states:

If the original or copies of a work are lawfully introduced into civil circulation in the Russian Federation through their sale or other alienation, further distribution of the original or copies of the work is allowed without the consent of the rights holder and without payment of remuneration...

Thus, neither the license agreement that you accept after purchase, nor the inscriptions on the box, nor the lost profit of the rights holder can deprive you of the legal right to dispose of copies of licensed games. Therefore, if you see someone indiscriminately labeling everyone as criminals, just show them this article.

By the way, if anyone thought that Article 1272 of the Civil Code allows you to create copies and distribute the game on torrents, please read it more carefully.

Is it the Same with Digital Copies?

Unfortunately, no. Rights holders have found a loophole that essentially eliminates the fact of the player acquiring their own copy of the game. "Buying" a digital version of the game, you only acquire the right to use it. In other words, you are renting the game, and you cannot freely dispose of it, but the rights holder can.

But it is important to understand that this is still not the same as piracy. If you want to sell or let someone use your account with games, you will not violate the criminal articles we discussed above. All you are violating in this case are the terms of the license agreement and some articles of the Civil Code, which does not make you a criminal.

Buying Games from Another Country

The rights holder has the exclusive right to distribute their games, and importing games from other countries without the rights holder's permission is a violation of Article 1229 of the Civil Code.

However, recently in Russia, Federal Law No. 46-FZ and Government Decree No. 506 have come into effect, which are known to ordinary players as the "Parallel Import Law." According to these laws, the government compiles a list of goods to which certain articles of the Civil Code do not apply. According to it, without the permission of the rights holder, it is allowed to import gaming products from:

Nintendo

Sony

Microsoft

Valve and others

But it is important to remember that this list is constantly changing, and items can be removed from it at any time. However, even if you accidentally violate Article 1229 of the Civil Code, it will not be considered a criminal offense.

Epilogue

I think I will end here. Although this is far from everything that can be derived from copyright laws. I have outlined the main points, but you must understand that legislation is evolving, and what is considered piracy today may cease to be so tomorrow, and vice versa.

You cannot take everything written on the internet at face value. Especially when it comes to other countries. Russia has its own laws. In some places, they are softer, in others stricter, but they must still be followed. Therefore, if you are unsure about something, it is always better to open the code and clarify.