Is it illegal to infringe copyright if your boss or your client ordered you to do it?

Question

The first possible scenario is this: suppose you work in a company, and you need to install some software for a client. The software needs to be purchased, but the boss tells you to just download it for free illegally (infringing copyright). You tell your boss that of course that's illegal and it's not the best way to do the job, but they tell you: "I know, but who cares, just download it for free". If you did it, who would be responsible for the illegal download in this situation? If you are responsible, how should you deal with such a situation?

The second possible scenario is this: suppose you are a freelance software developer, and your client asks you to install a thing for them. They give you a link to an unofficial website where you can download the stuff for free (illegally). You tell them it's illegal, and the stuff should be purchased. They tell you: "Who cares, I'm not going to spend any money for purchasing it, your job is just to do exactly what I've told you, that is, just install it, and that's it". Again who would be responsible and how should you deal with this situation? Of course here there's always the option to not accept the job since you are a freelancer, but I also wonder if there are other options in theory. For example, maybe the client could download the software illegally themself, and then only give it to you for the installation?

Location of the scenarios: any States of United States or any Member States of the European Union, but only one jurisdiction at a time.

Answer 1

There are two parts to copyright liability: civil and criminal. TL;DR: both cases are criminal offences, and it is illegal to break the law even when you are paid to do it.

In the USA criminal copyright infringement requires a deliberate act to infringe copyright for commercial gain. Both of the scenarios meet these requirements.

In the UK (and probably the rest of Europe) criminal copyright infringement includes

possess in the course of a business an article which is, and which you know or have reason to believe is an infringing copy of a copyright work with a view to committing any act infringing the copyright.

Again, both these scenarios meet this requirement.

In the first scenario you are acting as an employee, so you don't have any personal civil liability for damages; that goes to your employer. However you still have, at least in theory, criminal liability.

In the second scenario you are your own employer and so have both civil and criminal liability. Your client will share some liability as they have provided inducement to break the law.

The best way of dealing with the first scenario is to point out to the boss that he is ordering you to commit a crime. Cite the law in your jurisdiction and the penalties for breaking it. Do this by email so that you have evidence of having told him, and take a printed copy of the email home with you just in case (if your boss isn't above criminal copyright infringement he may also not be above tampering with evidence). If you are in a big company then a CC to HR might also be indicated. If the boss is the company owner then you are in a stickier situation; your best option is probably to perpetuate the evidence as above and start looking for an employer who doesn't break the law.

The second scenario is simpler: just refuse to do it.

Answer 2

I'm in the UK. I have been put in both these scenarios in times past. For the first I stood up to the boss and point-blank refused to do it, giving reasons. The atmosphere was tense for a couple of days, then he apologised and thanked me for taking the moral (and legal) high ground. The second was a little trickier, I still said I would not install hooky software, but I had to be a lot more diplomatic with the client. Eventually, they recognised my standpoint and said upon paying the bill that they would probably do it themselves later.

Stick to the law where you are. Remember that even in the military, obeying an unlawful order is still unlawful.

Answer 3

Well, there are cases where doing something without permission of your boss is illegal, there’s really no case where doing an illegal act becomes legal because your are being paid to do it…with the exception of acting on behalf of the government (for instance imprisoning someone is generally illegal, but prison guards do it all day long).

Given that we are dealing with copyright, there could be some subtleties to this: copyright and licensing agreements are not the same thing. It could be legal for you to download and use something (from a pirate site and without following the license), but illegal to install it on a different computer or even the same computer if that computer is not yours. And different countries have different copyright laws, even if they have signed the Bern Convention and not all countries have.

But again, if it is illegal for you to do so, it will still most likely be illegal if told to do so.

I am not an attorney and I am not YOUR attorney, if in doubt about the legality of an action get your own attorney and get a professional opinion. “I consulted JC, Esquire of the firm JC and Partners and was told my actions would be permissible under section X of the law”, is likely to help if you end up in court, “a bunch of unknown people on the internet said it was OK, they even referenced title 7 in section 3 of the international legal code as amended on July 3, 1973” not so much...

Answer 4

TL;DR

In Hungary, the matter is less straight forward as it is suggested by analogies about bank robbery and murder in the comments and answers.

It potentially is, and you would most certainly not be prosecuted for it on criminal grounds, and the boss is likely depending on facts.

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In general, Hungarian law presumes that the public engages in the pirating of artwork subject to copyrights. (I'm serious!) And it compensates the copyright owners by imposing a general data storage tax on all non-transitory storage medium, including thumb drives, memory cards, SSD's hard drives, optical disks etc. Accordingly, it is not a crime to create any copies of any copy right material as long as it does not create profit even indirectly.

Although, according to the Penal Code:

Infringement of copyright or rights related to copyright

Section 385 (1) Any person who infringes the copyright or related rights of another or others under the Copyright Act by causing pecuniary damage shall be punishable for a misdemeanor by imprisonment for a term of up to two years.

§ 385 (5) A person shall not commit an offense under paragraph (1) who infringes the copyright or related rights of another or others under the Copyright Act by making sharing for reproduction or for retrieval, provided that the act does not serve the purpose of obtaining profit even indirectly.

Accordingly, not only there is a high bar to hop in that the law requires that the infringing cause "pecuniary damage" which in many cases you may argue it does not, as someone who downloads does not necessarily intent to obtain the copyright art any cost; in fact, downloading copyright material is usually driven by financial reasoning rather than convenience considerations especially in 2021.

Those who would meet these high bars would also not be subject to the exemptions of paragraph 5 which allows infringement for the purposes of sharing the copyrighted material or sharing for the purposes of retrieving. This particular provision provides strong immunity against criminal culpability for the most typical uses of using torrent sites as long as such infringement "does not serve the purpose of obtaining profit even indirectly".

You used to be able to run into cops buying PSX games to their chip-tuned Playstation consoles in gaming shops in their uniforms more then one at the time. So you can imagine how seriously this is actually prosecuted.

And it probably goes hand-in-hand with the fact that the law allows one to go so far that a layman is not expectable to actually be aware of such nuances, for example, whether as part of their employ and generating profits for another would also make them culpable despite they did not generate profits for themselves and would only be compensated as they would be otherwise as part of their employment. It is very much reasonable to expect a judge would decide that a wage is not profits even for the purposes for this Section of the Penal Code, and you're off the hook. Even if it did find that the business profited from the act, and you therefore engaged in the creation of profits indirectly, there is a chance you would be found not be culpable having acted in "error", that is, you misunderstood the law because of its succinct form. (By the way "error" relieved a law professor in the U.S. about a tax code that he misunderstood despite being a law professor. There the argument was that, given his accolades, he should have had no difficulty understanding it, and not understanding it signals an issue in the law.)

Overall, since law enforcement and other authorities probably foresee these traps of prosecuting a case like this, they would likely not even get started. No case has reached media attention for years, and it would if someone would be prosecuted for copyright matters like these.

Civil liability could possibly work, but absent punitive damages or civil penalties, it is absolutely not worth it for any author or copyright holder to seek them. You would not receive more than the reasonable price of a copy of your copyrighted material.

All in all, you would probably be safe to install whatever your boss tells you even to a cop in uniform.