SHOULD I COPY SOFTWARE?
(Original title: Kopioisinko ohjelmia?)

** Everybody knows that to copy and sell commercial software is illegal. Or do they? Helsinki city court needed more than a year and half to decide, whether the side business of a young computer hobbyist was criminal. Neither side was happy with the outcome of the case.

PEKKA HONKANEN

The story begins in fall 1983 when the main character of this story, a 15 year old schoolboy, got himself a home computer. Those who started at that time remember how home computers and software, in particular, were expensive at first. Thus, it was no surprise that magazine ads selling cheap software were interesting.

Instead of just buying the programs, which he correctly deemed copies, he chose another way. Selling software yourself seemed like an easy way to earn extra pocket money. There was no shortage of goods to sell, as one of his friends had a large collection of diverse software. Even better, the pesky copy protections were already removed.

Two ads

In the early spring of 1984 the schoolboy posted an ad on a magazine about four games and a popular Basic extension. The price depended on the buyer and was 20-60 marks for the games and 100-150 marks for the Basic extension.

Only the main character of the story knows how many ads there were and how many programs were sold. As is common in business life, the views of the participants differ from each other a lot.

In any case, at least in October 1984 and February 1985 the schoolboy sent copied software to two interested buyers. These deliveries ended up in the hands of a competitor, namely the original importer of the software. The first act had now ended. According to his own account, the young software entrepreneur got to hear about the turn only when the police appeared behind his dooor.

The representatives of the importer had noticed a newcomer in the software market. As it seemed there were others like him, there was a need to do something about it. The response of the importer was to file an offence report against the schoolboy.

The debate begins

Applying the existing copyright legislation on computer software has been debated by experts for a long time. There was undeniable evidence of at least one ad and two sales, and the youngster did not even deny that he had copied and sold software. However, he did not admit doing anything illegal.

The defense questioned whether the sofware that was sold was even within copyright. Another question was whether the importer had any right to file an offence report, as the sofware was created abroad.

These questions and the claims of the importer lead to a battle between experts. There were ten court sessions during a year and half. The case was delayed because of the requests by the prosecutor, accused and the city court who required extra investigations.

Court decision

After almost three and half years after the ad was posted the city court finally "states that Section 1 of the copyright law protects the creator regardless of the publication format..." and "...a computer program can always be returned to a literary format and therefore falls within copyright as long as it meets the threshold of originality..." and "...the creator can transfer their rights (apart from moral rights) to a legal person" and so on.

In plain language this means that games are subject to copyright laws. In addition, the court decided that the importer held the Finnish copyright for the aforementioned software.

Now there was an official definition for the activities of the youngster who had sold the software: A continued copyright breach from summer 1984 to Februrary 1985 committed as a young person. The punishment was a fine of 600 marks and the loss of the confiscated computer and floppies. The floppies were to be destroyed. The second act of the play, which had shadowed the now adult boy's life, ended with both parties disagreeing on the outcome.

Why the disagreement?

The youngster had to pay 2000 marks to the importer and cover their legal expenses of 20 000 marks (yes, you read right). The importer had sought for a higher sum, but the court deemed 2000 marks as adequate.

There are no clear answers to all the questions in law books. In unclear cases it makes them easier to solve if there is an antecedent, which you can refer to later on. Here the court case was partially about getting an antecedent, and in the court proceedings there was a clause which ensured that the case would proceed to higher courts.

The key was the sentence "The city court states that when it comes to other sofware mentioned in the charge, their essence is in the idea instead of how to turn the idea into software, which is why they do not fall within the copyright legislation." These other software were a spreadsheet, Pascal compiler, word processor, Basic compiler and Basic extension.

From the point of view of the antecedent the decision is baffling in this regard. Many think that it is evident that the copyright law protects computer software, so it is no surprise that the importer was not satisfied.

What next?

According to the decision of the Helsinki city court, to copy, for instance, a word processor does not breach copyright. However, you should not start copying them either, as it is likely that higher courts will come to a different conclusion. The sad side of the affair is that the main character of the story will likely lose the case and the legal expenses will be even higher. Sad, because in addition to the actual crime, he will end up paying for the unclarity of the copyright law.

The copyright law allows you to make copies for your own use. To sell copying software or modules is not illegal, but distributing copied software might end up expensive.

This is not the only court case like this and the moral of the story is: carefully consider before offering for sale "original" software. One day the customer might be a person who only wants evidence of copied software. At that point it is Game Over.