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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.

E-promulgation of Polish law

January 5th, 2010, Tomasz Rychlicki

The Act of 10 September 2009 on amending the Law on the promulgation of normative acts and some other legal acts, Journal of Laws (Dziennik Ustaw) of 2009, No 190 item 1473, came into force on 1 January 2010. According to the amendments, the Journal of Laws and the Polish Monitor or normative acts and other legal acts contained in them, including judgments, are made available freely for inspection and to download in the form of an electronic document from the website of the Government Legislative Center.

The minister responsible for informatization will also determine, by a regulation, the technical requirements to be met by electronic documents addressed for the announcement, containing normative acts and other acts, including judgments, taking into account the need to preserve the unity of supplied electronic documents and their possible transformation for the issue of the official journal.

Computer crime, case II K 320/07

December 14th, 2009, Tomasz Rychlicki

Do you remember Cohen v. Google, Inc., 2009 WL 2883410 (N.Y. Sup. Ct. Aug. 17, 2009)? If not, just see this short description available at citmedialaw.org website. And it looks like we will have a similar case in Poland. The Polish court wants Google to reveal its users data.

In the articled entitled “Google ma ujawnić e-maile“, the Polish newspaper Rzeczpospolita reports recent case of Jakub Świderski. Mr Świderski is a former councillor of Sopot town and a party of a criminal suit brought against him based on a private accusation/charge by Jacek Karnowski, the President of Sopot, (who has been served with seven corruption charges) and his former deputy Cezary Jakubowski. Karnowski and Jakubowski argue that they were insulted and offended by statements allegedly published by Świderski in the onepage magazine “Obserwator sopocki” (in English: “Sopot’s Observer”) that was distributed during local elections in 2006. They also claim that their “public confidence” was jeopardized by Świderski’ actions.

“Obserwator sopocki” was published only three times in 2006. Authors of published texts suggested illicit trade premises and municipal corruption. Karnowski said he had been particularly offended by a photograph depicting his caricature with the envelope in his hand suggesting that he is taking bribes.

Mr Karnowski argues that Świderski was the publisher of “Obserwator sopocki”. The problem is that it has to be proven. The newspaper was distributed on the streets, it was not registered as the press, and the authors wrote under pseudonyms/nicknames: takata1, rzeźniksopocki, wasp. Świderski did not admit that these were his nicknames. So far, the only evidence Karnowski had, was a statement issued by Świderski in which he said “To ja jestem głównym “Obserwatorem”" (in English: “I am the leading “Observer”").

The secret trial before the Regional Court Gdańsk-Południe, case file II K 320/07, was started three years ago. Świderski was charged based on privisions of 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.

A few months ago Jakubowski and Karnowski requested the Court to issue an order for the disclosure of e-mail correspondence of Świderski. As Rzeczpospolita reports they asked the Court to exempt Google and Microsoft from the secrecy of correspondence, and to investigate by the Police of all IP addresses of persons, who corresponded with Świderski from July to November 2006. These are addresses registered at gmail.com and hotmail.pl.

Rzeczpospolita reports that Judge Ludwika Małkowska took into account the request of Karnowski to admit the evidence of “official secret information” and exempted Google Kraków (foreign controlled company whos parent company is Google). Judge Małkowska ordered Google Kraków to provide information on persons who registered e-mail addresses related to aforementioned nicknames, identities of all persons who have access to these accounts, from which IP addresses the correspondence was retrieved and what messages were sent to which of the e-mail addresses, together with their content. Judge Małkowska stated that in this case it is necessary to determine the person or persons responsible for the defamatory publications.

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.

Internet domains, case I ACz 364/08

October 1st, 2009, Tomasz Rychlicki

I may be wrong (errare humanum est right?) but it looks like the Appellate Court in Białystok in its judgment of 6 May 2008, case act signature I ACz 364/08 decided the first Polish court’s case regarding the cybersquatting issue. The court simply ruled that, the registration and use of the Internet domain name which is the same as someone else already existing domain, may be regarded as an act of unfair competition. The definition is provided in the article 3(1) of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No 47, item 211, with later amendments.

Article 3
1. The act of unfair competition shall be the activity contrary to the law or good practices which threatens or infringes the interest of another entrepreneur or customer.

The court also noted that although the act of unfair competition takes place only when the arguing entrepreneurs can be regarded as competitors. However, there are not excluded situations where a website under a disputed domain name will be providing goods or services different from those associated with a given name on the non-virtual market. Also in such situation a person may request for the protection against violations of the rights to the domain name, especially when it is registered in order to block a domain by a competitor, if it identifies an inactive website or a webpage or a website which is not updated nor offering any goods. Registration of such domains leads to a substantial impediment to market access for other entrepreneurs, which is in violation of article. 15 of the Polish Act of 16 April 1993 On combating unfair competition. Such actions, however, have also an economic overtone, and therefore they concern the economic rights.

Update on January 29, 2010.
Just see my post entitled “Internet domains, case X GC 1245/03“.

See also “Polish case law on domain names“.

It is out now!

July 14th, 2009, Tomasz Rychlicki

My dear readers. All P.T. readers. I would like to draw your attention to the International Free and Open Source Software Law Review. It is an absolutely free publication on legal aspects of free and open source software. The first issue is available for download (both HTML or PDF versions) directly from its website. There, you’ll find couple of interesting articles. In particular, I recommend Shane Coughlan’s and Andrew Martin Katz’s article titled “Introducing the Risk Grid“. I will also immodestly mention that from the very beginning I was involved in the creation of the IFOSS L. Rev. and I am currently a member of the editorial board. Of course, I invite everyone to write for his periodical. Please do not hesitate to submit your papers.

There is another “Polish theme” in the IFOSS L. Rev. Great logotype and covers for the journal were created pro bono by my good friend Tomasz Politański.

Personal rights, case II CSK 539/07

March 27th, 2009, Tomasz Rychlicki

QXL Poland sp. z o.o. is the owner of the allegro.pl auction website which removed the user account of a person (Cezary O.) using the nicknames CezCez, 2cez, 2xcez and espia. The company presented different reasons for its decision to remove the account and tried to justify such action by putting various statements about CezCez on its forum website “Cafe Nowe Allegro”. CezCez did not agree with QXL’s statements and sued. The court of first instance agreed with Cezary O.’s arguments and ruled that QXL Poland make a statement of apology as follows

Allegro.pl wishes to apologize to CezCez for using comments by one of its employees which publicly appeared on the New Cafe Allegro on 17 January 2003,– wording that implied CezCez was dishonest, he lies, he is selfish and that he pursues his own self-interest. These actions and comments affected the good name of CezCez, which was not the intention of QXP Poland.

The above statement was to be published on the Allegro.pl website but both parties appealed. The Appellate Court in Lodz did not share the conclusions of the court of first instance that the username (a nickname) used in internet services is personal right/interests (i.e. intangible personal property) eligible for protection under articles 23 and 24 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, Journal of Laws (Dziennik Ustaw) No. 16, item 93, with later amendments.

Article 23
The personal interests of a human being, in particular to health, dignity, freedom, freedom of conscience, surname or pseudonym, image, secrecy of correspondence, inviolability of home, and scientific, artistic, inventor’s and rationalizing achievements, shall be protected by civil law independent of protection envisaged in other provisions.

Article 24
§ 1 The person whose personal rights are threatened by someone else’s action, may require the desist of that action, unless it is not illegal. In the event of the infringement one may also require, the person who committed the violation, to fulfill the actions necessary to remove its effects, in particular, to make a statement of the relevant content and appropriate format. According to the conditions laid down in the Code one may also require monetary compensation or payment of an appropriate amount of money for a social purpose indicated.
§ 2 If as the result of a breach of personal rights one has suffered pecuniary prejudice, the aggrieved person may claim compensation based on general principles.
§ 3 The above shall not prejudice the entitlements provided by other regulations, in particular in copyright law and the patent (invention) law.

The Appellate Court did not agree with the arguments that the user name (a nickname) has parallels with a pseudonym. The case went to the highest court in a further appeal as a cassation complaint. The Supreme Court of Republic of Poland in a judgment of 11 MArch 2008, case file II CSK 539/07, dismissed the case for procedural reasons. However, the SC did not agree with conclusion of the Appellate Court with regard to protection of nicknames or usernames in the digital environment.

The court noted that a username fulfils a variety of functions. First, the creation of a username is a prerequisite to registering on the allegro.pl website in order to obtain its own account and so participate in auctions. A person using such a nickname may be a buyer or a seller. Secondly, a username allows a person to log into Allegro.pl website. In the process of logging in, the user is given a pair of identifiers, such as a username and password. Thirdly, the username/nickname identifies the individual in question in the online environment, in this particular case, in the environment of people using Allegro.pl services.

The individual is therefore recognised as a user using a specific nickname. The Supreme Court could not agree with the position of Court of Appeal that the nickname is purely a technical issue used to personalise the operation. On the contrary it argued, the username/nickname defines and characterises the person who uses such an auction site, bids on it, is the party to a contract of sale, issues comments or is involved in correspondence with other users.

The court found that

In some cases, participations in the auction website by a user using a specific name can be a source of information for other participants who know that this user typically takes part in an auction of that type, bids only to a certain amount of money, only on certain days, in a certain way, does not compete with users using specific names, that the user is honest, efficient and immediately carries out transactions, etc.”
The Supreme Court also ruled that a username identifies a specific natural person. A username consists of a series of signs and letters, and there are no counter-indications that a person who created his or her own username could use his or her own name, surname, artistic pseudonym, pen name, or alias or it could even be a natural person who is the agent and uses the company name (the firm) under which it operates its business.

It appeared to the court that in the assumption of a username by a person rather than his or her own name, the pseudonym (which has so far been used as an example in artistic activities) is meant as the assumption of a nickname in order to allow for individualisation of that particular person. The word “nickname” comes from the Greek language (“pseudonymos”–bearing a false name, falsely named) and it means a first name, last name or another name which someone uses to conceal his real name or surname.

The court found irrelevant the motivation of a person who takes a nickname which is used as a pseudonym only in the “internet environment” or that the nickname may only be associated with the activities of that particular person carried out within the scope of services offered by Allegro.pl, since it may also have a broader meaning and go beyond the services of Allegro.pl. Consequently, the court noted that a username is subject to legal protection on the same basis on which protection is granted for any name, pseudonym or firm name, under which a person has established its business (whether it is a company name or that of a private person). At the same time, the court found no reason to treat a username/nickname as a separate personal right.

Telecommunication law, case I CSK 332/08

February 9th, 2009, Tomasz Rychlicki

The judgment of the Polish Supreme Court of 5 February 2009, case file I CSK 332/08 has been aptly commented in the title of Rzeczpospolita’s article “It is not allowed to set traps for subscribers“. Judge Krzysztof Pietrzykowski pointed out that the judgment is also about the prevention, because such cases may still occur. The operator, which benefits from providing customers with high-rate services has an obligations/duty to protect its subscribers against such traps. The principle should be different than the one that was used by TP SA (Telekomunikacja Polska S.A.). The blockade for such services should not be set on the customer’s request, it should be established by default and removed at customer’s request.

Categories: Polish Supreme Court | Polish courts | Polish law | computer law | telecommunication law.

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.

Press law, case II K 367/08

January 14th, 2009, Tomasz Rychlicki

I wrote an article entitled “Polish Courts Say Websites Should Be Registered As Press” together with my good friend Piotr Waglowski. It was recently published in the Computer and Telecommunications Law Review, C.T.L.R. 2009, 15(1), 9-14.

There is also a sequel to Leszek Szymczak’s story. On 16 December 2008, the Regional Court in Słupsk issued a judgment, case file II K 367/08, in which Leszek Szymczak was acquitted from charges of “publishing press material featuring criminal content that publicly incited its readers to commit offences”. As you may read from our article, this case concerned posts that were published at the online forum of http://gazetabytowska.pl website (also accessible at http://gby.pl), which – according to the Public Prosecutor’s Office – included incitement to commit crime. Charges were based on article 49a of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), Journal of Laws (Dziennik Ustaw) No 5, item 24, with later amendmets.

An editor who unintentionally published press material that featured criminal content mentioned in article 37a hereof, shall be subject to a fine penalty or the restriction of liberty.

In connection with article 255 of the Criminal Code of 6 June 1997, Journal of Laws (Dziennik Ustaw) No. 88, item 553, with later amendments.

1. A person who publicly calls for committing an offence of a fiscal crime shall be subject to a fine penalty, the restriction of liberty or imprisonment for up to two years.
2. A person who publicly calls for committing a crime shall be subject to the restriction of liberty for up to three years.
3. A person who publicly praises the commitment of a crime shall be subject to a fine penalty amounting to up to 180 daily rates, the restriction of liberty or imprisonment for up to one year.

The court ruled that according to the Polish Press Law, Leszek Szymczak is the publisher and the editor, however the entries that were posted by visitors of his website did not constitute a press material.

See also “Press law, case IV KK 0174/07“.

“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.

Tell what you have to if you are provider

October 20th, 2008, Tomasz Rychlicki

Judgment of the Court of Justice of European Communities of 16 October 2008 in case C-298/07, deutsche internet versicherung.

1. Article 5(1)(c) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’) must be interpreted as meaning that a service provider is required to supply to recipients of the service, before the conclusion of a contract with them, in addition to its electronic mail address, other information which allows the service provider to be contacted rapidly and communicated with in a direct and effective manner. That information does not necessarily have to be a telephone number. That information may be in the form of an electronic enquiry template through which the recipients of the service can contact the service provider via the internet, to whom the service provider replies by electronic mail except in situations where a recipient of the service, who, after contacting the service provider electronically, finds himself without access to the electronic network, requests the latter to provide access to another, non-electronic, means of communication.

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.