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Archive for: computer crime

Computer crimes, case I KZP 7/10

July 9th, 2010, Tomasz Rychlicki

The Supreme Court in its order of 29 June 2010 case file I KZP 7/10 held that, the prescription of defamation crime is counted from the date of publication of the offensive content. This crime is defined in article 212 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Article 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 2. If the perpetrator commits the act specified in § 1 through the mass media
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 3. When sentencing for an offence specified in §1 or 2, the court may adjudge a supplementary payment in favour of the injured person or of the Polish Red Cross, or of another social purpose designated by the injured person a supplementary payment (nawiązka).
§ 4. The prosecution of the offence specified in § 1 or 2 shall occur upon a private charge.

This issue was referred to the Supreme Court by the District Court, who had inquired whether the defamation is a crime of continuous nature, which means that in case of defamatory entry placed on the Internet, it is committed as long as entry is available on the website. Interestingly, the SC refused to answer this question but the Court deliberated very wide on this issue in the justification of the order. The Supreme Court ruled that on-line defamation is not a continuous crime, which would involve creating and maintaining the status recognized by law as unlawful. The Court was aware of the fact the interests of the victim are violated as long as the defamatory content is publicly available on a website. However, per analogy to the printed press, where the victim’s interests are harmed as long as there are archived copies of newspapers containing offensive words.

The Supreme Court held that the offense involving the placement of a defamatory content in the Internet as referred to in article 212 § 2 of the CC is committed at the moment to making an entry and not while removing it. This means that the perpetrator cannot be prosecuted with the private charge after a year from the time when the victim learned about the offender, but no later than the expiry of three years from the time it was committed.

Computer crime, case V K 1595/08

February 9th, 2010, Tomasz Rychlicki

Arnold Buzdygan brought a private accusation before the Regional Court for Wrocław Śródmieście V Criminal Division against Olgierd Rudak. The indictment was based on articles 212 § 2 and 216 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Article 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 2. If the perpetrator commits the act specified in § 1 through the mass media
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

Article 216
§ 1. Whoever insults another person in his presence, or though in his absence but in public, or with the intention that the insult shall reach such a person,
shall be subject to a fine or the penalty of restriction of liberty .
§ 2. Whoever insults another person using the mass media, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

The court in Wroclaw was obliged ex officio under article 35 § 1 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with later amendments, to examine its jurisdiction and if found otherwise, to refer the case to the court with the proper one. The Court in Wrocław held that pursuant to article 31 § 1 of the CRPC, the jurisdiction is where the offense was committed (the teritorial jurisdiction).

Buzdygan claimed that the offense was commited in the article entitled “Trolls scour in the Net” which was published in the Polish magazine Przekrój of 11 November 2007, in addition the allegedly defamatory content was broadcasted by TV stations such as TVN, Polsat and TVP, in their news and in the Internet. Judge Jolanta Pol-Kulig had to decide on the location of the Internet.

[b]oth the editorial office of Przekrój and the abovementioned TV stations and the Internet are located in Warsaw, one should consider that the commitment of a crime to the detriment of the private prosecutor was performed in that place.

The court in an order of 31 December 2008, case file V K 1595/08, referred the case to the Regional Court for Warszawa Śródmieście II Criminal Division. Interestingly, the court in Wrocław did not consider that the alleged offense was not committed.

See also “Personal rights, case I ACa 949/09“.

Polish police says downloading MP3s is legal

January 21st, 2010, Tomasz Rychlicki

On December 2009, the Warsaw’s Metropolitan Police (in Polish: Komenda Stołeczna Policji) published on its website 6 Christmas carols recorded in MP3 files. These songs were sung by the Choir of the Warsaw’s Metropolitan Police. My friend Piotr Waglowski wanted to know if Internet users who are downloading MP3 files, are allowed to do it according to regulations included in the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No. 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No. 90, item 631, with later amendments. Article 23 of the ARNR says

Lawful Use of Protected Works
Art. 23.-1. It shall be permissible, without the consent of the creator, to make use free of charge, of a work that has already been disclosed. However, this provision shall not authorize the construction of a building based on an architectural work or a work of urban architecture made by another person.
2. Personal use shall extend to use within a circle of persons who are personally related, in particular by blood or marriage, or who entertain social relations.

In his post entitled “Otrzymałem odpowiedź od rzecznika Komendanta Stołecznego Policji w sprawie MP3“, Piotr informs about the answer he received from podinspektor Maciej Karczyński – spokesman for the Commandant of the Warsaw’s Metropolitan Police.

Internet users who are downloading MP3 files available on the Internet, and then listening to them on their computers, operate on the basis of article 23 of the Act on Authors Rights and Neighbouring Rights, i.e. for the personal use.

wrote Mr Karczyński. Simply saying, the Polish police acknowledged and confirmed the fact that downloading MP3s is legal in Poland.

See also my previous post entitled “Say it loud and clear“.

Data retention in Poland

January 5th, 2010, Tomasz Rychlicki

The Regulation of the Minister of Infrastructure of 28 December 2009 on a detailed specification of data and types of operators of public telecommunications networks or providers of publicly available telecommunications services obliged for its retention and storage, Journal of Laws (Dziennik Ustaw) of 2009, No 226 item 1828, came into force on 1 January 2010. The operators will be obliged to perform so-called data retention for 2 years. They will have to collect data that allows to determine dialed numbers as well as a telephone used. The date and time of the connection, the type and location of the caller will also be loged. The same rules apply to Internet connections. The Regulation implements provisions of the Directive 2006/24/EC, on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC. However, in the article entitled “Służby sprawdzą, skąd i kiedy dzwonimy“, the Polish newspaper Rzeczpospolita reports Maciej Rogalski’s, the vice-president of the Polish Chamber of Information Technology and Telecommunications, statement.

The suppliers of equipment related to the mass memory, use of the possibility of lobbying also within the EU, and have suggested solutions, which have appealed to special services. However, the usefulness of the new regulation is questionable, since the subsequent use of the information collected is like looking for a needle in a haystack.

Copyright law, allowed personal use

November 16th, 2009, Tomasz Rychlicki

Downloading MP3s (or movies, pictures, press articles) is not illegal under the Polish law. According to article 23 of the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with later amendments.

Section 3
Lawful Use of Protected Works
Art. 23.-1. It shall be permissible, without the consent of the creator, to make use free of charge, of a work that has already been disclosed. However, this provision shall not authorize the construction of a building based on an architectural work or a work of urban architecture made by another person.
2. Personal use shall extend to use within a circle of persons who are personally related, in particular by blood or marriage, or who entertain social relations.

That was also explicitly said in Rzeczpospolita’s article entitled (this is my loosely translation of course) “Downloading MP3′s files is not a crime“.

No one in Poland will go to prison for downloading music or movies from the Internet. But you can get there for file sharing.

Computer software is protected on different rules. There are proper provisions included in the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Chapter XXXV
Offences against Property
Article 278. § 1. Whoever, with the purpose of appropriating, wilfully takes someone else’s movable property shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 2. The same punishment shall be imposed on anyone, who without the permission of the authorised person, acquires someone else’s computer software, with the purpose of gaining material benefit.

§ 3. In the event that the act is of a lesser significance, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

§ 4. If the theft has been committed to the detriment of a next of kin, the prosecution shall occur upon a motion from the injured person.

§ 5. The provisions of § 1, 3 and 4 shall be applied accordingly to stealing energy or a card enabling the collection of money from a bank automatic cash dispenser [automatic teller machine]

There is also Chapter 14 entitled Criminal Liability in the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with later amendments.

See also ““Pirate” politician“.

Lawmakers…

November 16th, 2009, Tomasz Rychlicki

In a recent attempt to fight against e-gambling, the Polish Ministry of Finance proposed a legislative amendments to the Act on Telecommunication Law (ATL) that introduce a “Registry of prohibited websites and services” – article 179a of the ATL. The publicly available registry will be operated by the President of the Office of Electronic Communications. According to the proposed amendments if someone would like to have its website removed from the registry – it has to provide a statement with the “evidence of a legal title to its website or a declaration about provided services” – article 179a. 5. Sigh…

Categories: Polish law | computer crime | computer law | digital economy | telecommunication law.

Was is the Polish-Russian cyberwar?

October 11th, 2009, Tomasz Rychlicki

According to Rzeczpospolita’s article entitled “Cyberattacks on Poland“, the Polish Internal Security Agency thanks to its cyberpatrols prevented tha largest cyberattack on Polish governmental website. The ISA thinks that these organized DDoS attempts were directed from the Russian Federation.

If you are interested in such issues see also my earlier post entitled “Cyberwar or Why States Need an International Law for Information Operations“.

Categories: computer crime | computer law | criminal law | legal regulations on computers networks.

Comparative law – literally, word for word

January 15th, 2009, Tomasz Rychlicki

Recent changes in the Polish Criminal Code regarding “computer crimes” that were introduced by the the Act to amend the Act – the Criminal Code and certain other acts of 24 October 2008, Journal of Laws (Dziennik Ustaw) No. 214, item 1344, which entered into force on 18 December 2008.

Chapter XXXIII. Offences against the protection of information

Article 265. § 1. Whoever discloses or, in violation of the law, uses information which constitutes a state secret

shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 2. If the information specified in § 1 has been disclosed to a person acting in the name of or for a foreign entity, the perpetrator

shall be subject to the penalty of deprivation of liberty for a term of between 6 months and 8 years.

§ 3. Whoever unintentionally discloses the information specified in § 1, with which he has become acquainted in the performance of his official function or authorisation delegated to him

shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

Article 266. § 1. Whoever, in violation of the law or obligation he has undertaken, discloses or uses information with which he has become acquainted with in connection with the function or work performed, or public, community, economic or scientific activity pursued

shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

§ 2. A public official who discloses to an unauthorised person information which is an official secret or information with which he has become acquainted in the performance of his official duties and whose disclosure can endanger a legally protected interest

shall be subject to the penalty of deprivation of liberty for up to 3 years.

§ 3. The prosecution of the offence specified in § 1 shall occur on a motion of the injured person.

Article 267. § 1. Whoever, without being authorised to do so, acquires information not destined for him, by opening a sealed letter, or connecting to a wire that transmits information or by breaching electronic or bypass, electronic, magnetic, information or other special protection for that information

shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

§ 2. The same punishment shall be imposed on anyone, who without being authorised to do so acquires access to whole or part of an information system.

§ 3. The same punishment shall be imposed on anyone, who, in order to acquire information to which he is not authorised to access, installs or uses tapping, visual detection or other special equipment.

§ 4. The same punishment shall be imposed on anyone, who imparts to another person the information obtained in the manner specified in § 1-3 discloses to another person.

§ 5. The prosecution of the offence specified in § 1–4 shall occur on a motion of the injured person.

Article 268. § 1. Whoever, not being himself authorised to do so, destroys, damages, deletes or alters a record of essential information or otherwise prevents or makes it significantly difficult for an authorised person to obtain knowledge of that information,

shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

§ 2. If the act specified in § 1 concerns the record on an electronic information carrier, the perpetrator shall be subject to the penalty of deprivation of liberty for up to 3 years.

§ 3. Whoever, by committing an act specified in § 1 or 2, causes a significant loss of property

shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 4. The prosecution of the offence specified in § 1-3 shall occur on a motion of the injured person.

Art. 268a. § 1. Whoever, without being authorised to do so, destroys, damages, removes, changes lub makes an access to data difficult or in a significant way disrupts or prevents from the automatic process, gathering or transmission of such data,

shall be subject to the penalty of deprivation of liberty for up to 3 years.

§ 3. Whoever, by committing an act specified in § 1, causes a significant loss of property

shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 3. The prosecution of the offence specified in § 1 or 2 shall occur on a motion of the injured person.

Article 269. § 1. Whoever destroys, deletes or changes a record on an electronic information carrier, having a particular significance for national defence, transport safety, operation of the government or other state authority or localgovernment, or interferes with or prevents automatic collection and transmission of such information

shall be subject to the penalty of deprivation of liberty for a term of between 6 months and 8 years.

§ 2. The same penaly should apply to a person who commits offences mentioned in § 1, by destroying or replacing the information carrier or by destroying or damaging a device serving for automatic processing, gathering or transfering of information data.

Art. 269a. Whoever, without being authorised to do so, by transmission, destroy, removing, damaging or changing information data, in significant manner disrupts the work of a computer system or a teleinformatic network,

shall be subject to the penalty of deprivation of liberty for a term of between 3 months up to 5 years

Art. 269b. § 1. Whoever, produces, acquires, sells off or makes available to other persons devices or computer software adapted to perform a crime mentioned in art. 165 § 1 pt 4, art. 267 § 2, art. 268a § 1 or § 2 in connection with § 1, art. 269 § 2 or art. 269a, and computer passwords, access codes or other data that allow for the access to information stored in a computer system or teleinformatic network,

shall be subject to the penalty of deprivation of liberty for up to 3 years.

§ 2 In case of a conviction for an offense referred to in § 1, the court rules the forfeiture of items, and may decide their forfeiture if they were not the property of the perpetrator.

Here is also one ODT, 14KB, file with both versions. Please send your comments regarding the translation.

“Pirate” politician

December 23rd, 2008, Tomasz Rychlicki

According to a recent article which is available at wp.pl website, in Polish language, the court trial of Tomasz Sz., former member of the Civic Platform and deputy mayor (or vicepresident if you prefer) of Kraków city will start in mid-January next year. Tomasz Sz. along with other former Kraków city’s managers is facing charges for mismanagement and corruption. The prosecutor also alleges that Tomasz Sz. in order to achieve financial gain, downloaded from the Internet illegally copied software for GPS devices without the consent of its producer and programs that were created for removing security measures implemented to prohibit the operation of software in full. The price of the aforementioned software (with maps included) was estimated at 850 PLN. The said software was found on the Parliamentary’s laptop assigned to the politician.

Now, what about Polish criminal law regulations on computer (and not only as you can see from the above example) software copyright infringement? There are proper provisions included in the Criminal Code (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Chapter XXXV
Offences against Property
Article 278. § 1. Whoever, with the purpose of appropriating, wilfully takes someone else’s movable property shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 2. The same punishment shall be imposed on anyone, who without the permission of the authorised person, acquires someone else’s computer software, with the purpose of gaining material benefit.

§ 3. In the event that the act is of a lesser significance, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

§ 4. If the theft has been committed to the detriment of a next of kin, the prosecution shall occur upon a motion from the injured person.

§ 5. The provisions of § 1, 3 and 4 shall be applied accordingly to stealing energy or a card enabling the collection of money from a bank automatic cash dispenser [automatic teller machine].

There is also the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with later amendments.

Chapter 14
Criminal Liability
Art. 115. 1. Any person who usurps the authorship or misleads as to the authorship of all or part of the work or performance of another shall be liable to a term of imprisonment of up to 3 years, restriction of freedom or a fine.

2. Any person who, without mentioning the creator’s name or pseudonym, discloses the work of another either in its original or in a derived form, or a performance, or who publicly distorts a work, a performance, a phonogram or videogram or a broadcast, shall be liable to the same penalty.

3. Any person who, with a view to making a material profit in a manner other than that specified in paragraph 1 or 2, infringes the rights of the author or neighboring rights within the meaning of Articles 16, 17, 18, 19 paragraph 1, art. 19¹, 86, 94 paragraph 4 or article 97 or without performing his duties as mentioned in article 19³ paragraph 2, 20 paragraphs 1-4, 40 paragraph 1 or paragraph 2,
shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Art. 116. 1. Any person who, without authorization or without respecting the conditions imposed, discloses another’s work in its original or in a derived form, or a performance, a phonogram or videogram or a broadcast shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.

2. If the perpetrator of the infringement commits the acts specified in paragraph 1 with a view to deriving a material profit therefrom, he shall be liable to a term of imprisonment of up to three years.

3. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of six months to five years.

4. If the perpetrator of the infringement defined in paragraph 1 acts unintentionally, he shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Art. 117. 1. Any person who, without authorization or without respecting the conditions imposed, fixes or reproduces another’s work in its original version or in a derived form, or a performance, a phonogram or videogram or a broadcast, at the same time authorizing the disclosure thereof, shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.

2. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of up to three years.

Art. 118. 1. Any person who, with a view to making a material profit thereby, acquires the object constituting the material embodiment of a work, a performance, a program or a disclosed videogram, or reproduces it without authorization or without respecting the conditions imposed, assists in the sale of the said object, conceals it or assists in its concealment, shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.

2. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of up to three years.

3. If the perpetrator of the infringement defined in paragraph 1 or 2 on the basis of surrounding circumstances should and can assume that the item was obtained through criminal act,
he shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.

Art. 118¹. 1. Any person who manufactures the devices or their components intended for the unauthorized removal or circumvention of effective technical measures against playing, copying or reproduction of works or objects of related rights or any person who is making a turnover of such devices or their components, or advertise them for sale or lease,
he shall be liable to a term of imprisonment of up to three years, restriction of freedom or a fine.

2. Any person who owns, maintains or uses the device or their components, referred to in paragraph. 1,
he shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Art. 119. Any person who obstructs or hinders the exercise of the right to monitor the use of a work or artistic performance, or who refuses to give the information provided for in Article 47, shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Art. 120. (repealed)

Art. 121. 1. In the case of condemnation for an act referred to in Article 115, 116, 117 or 118 or article 118¹, the court shall decide to confiscate the objects resulting from the infringement, even if they do not belong to the perpetrator thereof.

2. In the case of condemnation for an act referred to in Article 115, 116, 117 or 118, the court may decide to confiscate the objects that served for the commission of the infringement, even if they do not belong to the perpetrator thereof.

Art. 122. The acts referred to in Articles 116, paragraphs 1, 2 and 4, 117, paragraph 1, 118, paragraph 1, 118¹ and 119 shall be proceeded against on a complaint from the injured party.

Art. 122¹ In cases of crimes referred to in Articles 115-119 a competent organization for collective management of copyright and related rights is also deemed as sufferer.

Art. 123. The Minister of Justice may specify by ordinance the regional courts within the jurisdiction of a particular voivoide court that are competent to hear cases relating to the infringements referred to in Articles 115-119.

“Piracy” in Poland

December 22nd, 2008, Tomasz Rychlicki

By the term “piracy” I do not mean “an offense against humanity” as defined in U.S. v. Furlong, 18 U.S. 184, 5 L. Ed. 64 (1820) or that “the crime of piracy comprehends an act upon the high seas” (61 Am Jur 2d Piracy § 8). Although, I am being aware of the Oxford English Dictionary definitions such as “1603 T. Dekker Wonderfull Yeare sig. A4, Banish these Word-pirates (you sacred mistresses of learning) into the gulfe of Barbarisme” or “1668 J. Hancock Brooks’ String of Pearls (Notice at end), Some dishonest Booksellers, called Land-Pirats, who make it their practise to steal Impressions of other mens Copies” or “1703 D. Defoe True-born Englishman in True Collect. I. Expan. Pref. sig. B3v, Its being Printed again and again by Pyrates” or even “1706 D. Defoe Jure Divino Pref. p. xxvii, Gentlemen-Booksellers that threatned to Pyrate it, as they call it, viz. reprint it, and sell it for half a Crown”.

Anyway, according to the article which is available at onet.pl website, in Polish, the District Court in Koszalin has sentenced Łukasz D. – a former student of the Koszalin University of Technology (Politechnika Koszalińska) for a half year of imprisonment for computer “piracy”. The judgment was suspended for two years. The court found Łukasz D. guilty of the theft of 49 programs (of a total value of 180 709,66 PLN). Łukasz D. could even face 10 years in prison, but the court took into account his attitude during the investigation, and mitigated the sentence. The mitigation was also requested by the prosecutor in his final speech.

The case of 19 students from Koszalin who were involved in copyright infringement in P2P networks was widely publicized in Poland because the Police, Customs officers and private investigators from the Polish Society of the Phonographic Industry did not inform the vice chancellor of the Koszalin University of Technology (for my US English readers – the president) about their action which took place in university’s dorms. Academia authorities have deemed such operation as violation of the autonomy of universities and challenged the search action (which was performed without a proper search warrant, just on the basis of an official legitimacy of the Police) before the Public Prosecutor’s office. The Police search action was also officially condemned by the Conference of Rectors of Academic Schools in Poland and students organized pickets at the center of Koszalin. However, the Public Prosecutor’s office considered the complaint as unfounded and approved the dorms’ search.

They have the right, don’t they?

October 16th, 2008, Tomasz Rychlicki

Please read R. v. S and A., [2008] EWCA Crim 2177, and tell me why the Court does not want to recognize defendants’ right? Maybe it wants the case to be decided by the European Court of Human Rights? What is more interesting the British Appellate Court discuss one American judgment In Re Boucher, 2007 WL 4246473 (United States District Court for the District of Vermont, Nov. 29, 2007) which I mentioned in my post titled “Nemo se ipsum accusare tenetur“.

Just to remind you. The Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No.: 005.

Article 6 – Right to a fair trial
(…)
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Do I miss something? Isn’t it the duty of the Police and a prosecutor to collect evidences against defendants and to prove that they are guilty?

Categories: European Convention on Human Rights | UK law | US law | computer crime | computer law.

Nemo se ipsum accusare tenetur

August 20th, 2008, Tomasz Rychlicki

In Re Boucher, 2007 WL 4246473 (United States District Court for the District of Vermont, Nov. 29, 2007), PDF file. If you are not interested in the nuances of US law then the title of an article available at news.com website will tell you all about the issue of the aforementioned judgment.

Judge: Man can’t be forced to divulge encryption passphrase.

Couple of years ago I thought that such problem could be solved by simple sentence.

You have the right to remain silent and refuse to answer questions.

But Civil law lawyers will recall old Latin maxim nemo se ipsum accusare tenetur at once. The Polish Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with later amendments.

Art. 74. § 1. The defendant has no duty to prove his/her innocence or a duty to provide evidences for his/her disadvantage

June 10th, 2008, Tomasz Rychlicki

I browsed through specific or peculiar artworks of Rob Nance that are available at artforrobots.com website. I started to think more when I saw “Poseable Paper Pope”. Is it parody or just bad taste? De gustibus non disputandum est. Publicity right? It is quite relaxing situation for Mr Nance that Vatican does not sue so eagerly as it usually happens in the US. Just check such case as White v. Samsung, 971 F. 2d 1395 (9th Cir. 1992). Ms Vanna White (I have to add that Magda Masny was her counterpart in Poland) has sued Samsung for using her “image” in Samsung’s ads. I really really recommend you to read this judgment. Below, on the left, you’ll find a black and white image of Ms White and on the right, her “likeness” that was used in Samsung advertising campaign.
971_F.2d_1395-pictures

Judge Alex Kozinski wrote opinion for Vanna White v. Samsung, 989 F.2d 1512, 26 U.S.P.Q.2d 1362, 21 Media L. Rep. 1330 (9th Cir. 1993), which was the petition for rehearing in the above mentioned case. You may already know that I like his style and I often cite his profound deliberations as I did it in the post titled “Oh, these Internet’s contracts“.

May 30th, 2008, Tomasz Rychlicki

A small exercise for your legal skills. Please identify legal problems and issues concerning those two posters. First one is the advertising poster of Jacek Graniecki’s music achievements, he is better known in Poland as TEDE. The second one was used to promote a movie titled “Karol: A Man Who Became Pope“.

Categories: Polish Act on Authors Rights and Neighbouring Rights | Polish law | computer crime | copyright law.

Enforcing EULAs

April 29th, 2008, Tomasz Rychlicki

Selling botnets for particular attacks, black markets for stolen identities, and malware construction kits are all now par for the course for the increasingly commercial malware industry. Discovering that malware authors have actually turned to End-User License Agreements (EULAs) in an attempt to protect their own intellectual property, however, most definitely qualifies as something new, different, and beautifully ironic.

More details in the article available at arstechnica.com website.

What about the eforcement of such “agreement” and the US courts? I guess there is no dubt that such contract would be deemed as null and void. See holding in the case Weisbren v. Peppercorn Prods., Inc., 41 Cal. App. 4th 246, 262, 48 Cal. Rptr. 2d 437, 447 (1995), citing Lewis & Queen v. N.M. Ball Sons, 48 Cal. 2d 141, 150, 308 P.2d 713, 719 (1957).

The courts generally will not enforce an illegal bargain or lend their assistance to a party who seeks compensation for an illegal act. The reason for this refusal is not that the courts are unaware of possible injustice between the parties, and that the defendant may be left in possession of some benefit he should in good conscience turn over to the plaintiff, but that this consideration is outweighed by the importance of deterring illegal conduct. Knowing that they will receive no help from the courts and must trust completely to each other’s good faith, the parties are less likely to enter an illegal arrangement in the first place.

Categories: US law | computer crime | computer law | contract law | criminal law.