On the theft of computer software.
Article 278 of the Penal Code regulates the crime of theft, including in § 2 of this provision the theft of computer software and in § 5 the appropriation of a card authorizing withdrawals from an ATM.
How does the perpetrator of the theft of computer software behave?
The perpetrator of theft can be anyone who appropriates a movable item of economic value, which is someone else’s property and in someone else’s possession.
In the case of theft of computer software, it is important that the theft of the software occurs not through the theft of the medium (Art. 278 § 1 of the Penal Code) on which the program was stored, but by obtaining the program, which does not necessarily mean that its owner has been deprived of control over it. Computer software is protected by both the Penal Code and Article 115(3) of the Copyright and Related Rights Act. There is no legal definition of computer software.
In the case of a card authorizing the withdrawal of money from an ATM, theft occurs when the perpetrator deprives the owner of control over the card, but the perpetrator does not have to use the card.
The crime of theft is prosecuted ex officio, but if the perpetrator is a close relative of the injured party, the prosecution occurs upon request.
What punishment does one face for the theft of computer software?
Both the theft of computer software and the theft of a card authorizing the withdrawal of money from an ATM carry a prison sentence ranging from 3 months to 5 years.
The Penal Code allows for a lesser punishment in the case of lesser gravity, meaning that when mitigating circumstances exist, the court may impose a fine, a restriction of liberty, or a prison sentence of up to one year.
Is there a distinction between a crime and a misdemeanor (so-called split offense) in the case of the theft of computer software?
To classify the theft as a criminal offense, the perpetrator must steal a movable item whose value exceeds 500 PLN; otherwise, the provisions of the Misdemeanor Code (Art. 119 of the Misdemeanor Code) will apply.
However, this distinction does not apply either to the theft of a bank card or to computer software, which means that the theft of both of these items is considered a crime, not a misdemeanor.
Examples from the case law of Polish courts:
- „J.S. (1) was accused of, on October 14, 2010, in (…) Z., district (…), province (…), acting with the intention of obtaining material benefits and distributing computer software, without the consent of the representative of the company (…) Ltd. as the authorized person, obtaining foreign computer programs by connecting his computer to the server of the company (…) Ltd. without authorization and copying computer programs contained on that server to his computer’s disk by duplicating files, documentation, drivers, and source codes of programs stored in folders with the following names – as cited in the charge – constituting valuable property, with a total loss of 1,396,000 PLN to the detriment of (…) Ltd. at (…) Z., i.e. for an act under Art. 278 § 2 of the Penal Code in conjunction with Art. 294 § 1 of the Penal Code, in conjunction with Art. 117(1) of the Act of February 4, 1994, on Copyright and Related Rights in conjunction with Art. 11 § 2 of the Penal Code.” (Judgment of the Court of Appeal in Warsaw of April 7, 2014, II AKa 75/14)
- „T.O. was accused of, at an unspecified time, no later than October 17, 2012, in B., without the consent of the authorized entity (…) Ltd., obtaining foreign computer programs for forklift service of J. brand in the amount of (…) valued at approximately 705,544 PLN and (…) valued at 993,914.60 PLN, and then, with the intention of obtaining material benefits, installing the aforementioned software on the hard disk of a computer unit (…) which he owned and used as a forklift service technician at the enterprise (…) in B., at (…) street, thus acting to the detriment of (…) Ltd., i.e. for a crime under Art. 278 § 2 of the Penal Code in conjunction with Art. 294 § 1 of the Penal Code.” (Judgment of the Court of Appeal in Gdańsk of September 1, 2016, II AKa 220/16)
- „Between June 2008 and March 2009 in X, in the province (…), without the consent of the authorized person, he obtained foreign computer programs, namely T. (…), W. (…), N. (…), H., with a total value of 805 PLN stored on hard disk number 1 of his computer, and programs W. (…) and M. (…) with a total value of 2,520 PLN stored on hard disk number 2 of his computer, acting to the detriment of the manufacturers and distributors of these programs, i.e., N. (…) Sp. J. in W., S. Ltd. in W., M. Ltd. in W. and (…) P. This act is considered a less serious offense, i.e., an act under Art. 278 § 2 and 3 of the Penal Code.” (Judgment of the Supreme Court of July 10, 2019, IV KK 224/18)
Legal status as of: February 8, 2022
Cyberlaw by Judyta 