46

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: United States and European Union.

Improve this question
20
  • 56
    While you wait for others' answers, update your resume. – Damian Yerrick Feb 15 '19 at 16:25
  • 40
    Is this question essentially "Is it illegal to break the law, if someone else asks me to do it?"? ...Yes. – BruceWayne Feb 15 '19 at 16:25
  • 40
    Substituting a few words... "First scenario, your boss wants you to rob a bank for a client. You tell your boss that of course that's illegal but they tell you, 'I know, but who cares, just rob the bank'. If you committed the robbery who would be responsible? The second possible scenario, your client asks you to rob a bank. They tell you, 'who cares, I want that hoard of cash'. Again, who would be responsible? I wonder if there are other options. For example, the client can commit the robbery and then give you the cash so that you can launder it for them." – Fixed Point Feb 15 '19 at 16:30
  • 21
    If this were OK, hit men wouldn't be criminal liable for murder, only the person who hired them would be. – Barmar Feb 15 '19 at 20:06
  • 6
    I vas just vollowing orders... – Mazura Feb 16 '19 at 16:18
71

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.

Improve this answer
20
  • 67
    TL;DR It is illegal to break law even if you are paid to do it ;) – Mołot Feb 15 '19 at 13:55
  • 25
    Not only is it illegal even if you're paid to do it, it might be more illegal if you're paid to do it, since now there's the possibility of a criminal conspiracy charge (potentially even before you actually download or install any software). – 1006a Feb 15 '19 at 17:16
  • 12
    Correct answer however working in this sector for many years I can tell you this has almost a zero chance of being prosecuted criminally. I mean you would only have a .0001% chance of prosecution criminally if you had a blog that outlined your activity. There simply aren't police that monitor illegal software. This is 100% a civil issue. Speaking of it as a criminal issue is blowing this well out of context. Criminal would be downloading and selling the software - and even that is dealt with on a civil basis 9 out of 10 times. – blankip Feb 15 '19 at 20:15
  • 2
    @blankip until the client notices it's illegal software and calls one of the "report unlicensed software for money" lines. – TemporalWolf Feb 15 '19 at 21:37
  • 3
    @TemporalWolf My understanding of these lines is that they're private, and hence deal with civil liability. Certainly the BSA was known for settling in exchange for software purchases, which isn't something a criminal court would do. – David Thornley Feb 15 '19 at 22:24
27

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.

Improve this answer
8
  • 9
    Welcome to Stack Exchange. Please be aware that as this is a Q&A site and not a forum, answers need to address the question and need to be on-topic for the particular site. In this case you're posting on Law Stackexchange, and the question is asking whether or not something is illegal. Your answer should address the legality of the proposed action rather than just providing a commentary of your own experiences. Your final sentence hints at being on-topic, but more expansion for the specifics of the OP's case would be needed for this to be a good quality answer. – JBentley Feb 15 '19 at 18:59
  • @JBentley with respect, the question stipulates that the actions are illegal, so it's not asking whether they are; it's asking whether the OP is indemnified against the consequences of the illegal act by following the orders of either a superior or a client. I found Alopex's experience helpful, and apparently so did quite a few other people. – MadHatter Feb 19 '19 at 15:57
  • 1
    @MadHatter The first paragraph still does not answer anything about indemnification. Helpfulness is great, but doesn't turn it into an answer. And I personally find it not helpful at all -- I have no reason to believe that anyone who might try this with me would behave similarly to the two people they interacted with. – Matthew Read Feb 19 '19 at 16:00
  • @MatthewRead fair enough, that's what downvotes are for. Leaving aside my personal support for the answer, JBentley's criticism that "the question is asking whether or not something is illegal" is still wrong. – MadHatter Feb 19 '19 at 16:04
  • @MadHatter I don't agree with your analysis of the question. The title is very clear: "Is it illegal to infringe copyright if your boss or your client ordered you to do it?". This is further clarified by "If you did it, who would be responsible for the illegal download in this situation?". Note the difference between: (1) "Is X illegal?"; (2) "X is illegal. If I am ordered to do X, will I be indemnified?"; (3) "X is illegal, but illegal to which party?". This question is of type (3). – JBentley Feb 19 '19 at 16:21
14

Counter question: is it illegal to rob a bank if your boss tells you to do so?

The answers are the same.

Improve this answer
9
  • 8
    Not a good analogy. – selbie Feb 16 '19 at 7:43
  • 9
    @selbie why it's not a good analogy? As the accepted answer states, in this scenario the boss is telling you to perform a criminal offence, so an analogy with other criminal offences (like bank robberies) seems appropriate. – Peteris Feb 17 '19 at 3:44
  • 6
    @DavidRicherby that's the whole point - while copyright infringement by consumers, at home, for personal use is usually a civil matter, it's NOT what applies here. Doing it in a commercial setting for your boss or client generally can be a criminal matter for which the employee is personally liable. It's a bad analogy to compare this with copyright violation by downloading a movie at home, and a better analogy to compare it with boss-ordered robbery, because the legal risks for the employee are very different from the "movie download" scenario and quite similar to the robbery scenario. – Peteris Feb 17 '19 at 13:58
  • 4
    @Peteris OK. So you've had to write literally ten times as much text as this answer to explain why bank robbery actually is like the situation in the question -- thanks! That says it's a bad analogy: a good analogy wouldn't need so much explanation. – David Richerby Feb 17 '19 at 17:49
  • 7
    @DavidRicherby I think it's a perfectly good analogy. The problem is that you've made 2 invalid assumptions: (1) that it's a civil matter (2) that it makes a difference. – UKMonkey Feb 18 '19 at 14:46
3

Yes, but Congratulations! There is a bounty for reporting software piracy. https://reporting.bsa.org/

Then work on your resume.

Improve this answer
5
  • 7
    According to Wikipedia, BSA ran a campaign named "Bust your boss", where you could report your boss if they were using pirated software. The thing is, and it's the point of this question, are you really busting your boss? Or are you busting the the system administrator who installed the software? – reed Feb 15 '19 at 23:12
  • 1
    @reed: No, the point of the question is that it's not an exclusive-or. Reporting would definitely bust the boss. The question is whether it also busts the sysadmin. – Ben Voigt Feb 16 '19 at 19:25
  • I'm pretty sure that, as the whistle-blower, he would be protected. – IMarvinTPA Feb 17 '19 at 0:29
  • 1
    @IMarvinTPA: "protected" is a bit strong, who would be doing the protecting? More realistically, it would backfire rather dramatically if the BSA pressed criminal charges against those people who report illegal software. The BSA can decide only whether to report the crime; it has little choice in who gets persecuted. So for its own interests, it's counterproductive to file criminal charges at all. They're in it just for the money. – MSalters Feb 18 '19 at 10:14
  • @IMarvinTPA do you think the whistleblower would be protected if (s)he was the one who installed the copyrighted software? – mcalex Feb 19 '19 at 9:15
1

Well, there are cases where doing something without permission of your boss is illegal, there’s really no case whee doing an illegal act becomes legal with orders.

Now, 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.

But again, if it is illegal for you to do so, it will still 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...

Improve this answer
2
  • If the order involves a threat of bodily harm (and meets some other factors) then there are jurisdictions where the underling would not be held responsible. – Matthew Read Feb 19 '19 at 16:05
  • @MatthewRead: I thought about mentioning that, but decided it was too far outside of the described scenario—if your boss is threatening to kill or maim you or your family over installing some copyrighted software, you’ve got problems I can’t help with...(that “you” being the generic you, not you personally) – jmoreno Feb 25 '19 at 11:45

Not the answer you're looking for? Browse other questions tagged or ask your own question.