Software piracy and the canadian law

Software piracy refers to illegitimate replication and reproduction of another company's computer application software which have been patented by the source organization as the original owners with copyrights and distribution rights. Legally software piracy occurs when the reproduction and distribution of a software program by a third party is not permitted through copyright transfer by the copyright holders. Or when the terms of a contract between the software copyright holders and the third party are breached or limits of contract stretched by the third party to include reproduction and distribution of the organizations software program without the consent of the copyright holders. Other instance that constitute software piracy but which occur to a less extent is user illegal reproduction of a software program for personal usage only. The two fundamental issues that are central to software piracy revolve around piracy for purposes of monetary gain through trading, and inadvertently economic sabotage of the software program copyright holders and for personal use (Gulliard, 2007).

The history of software piracy can be traced back to the period covering 1990, with the computer revolution at the time that also revolutionized the need for computer literacy. During this period Microsoft Incorporation dominated the computer industry and had the largest market share, increase in personal computer sales was at an all time high. It is during this period that the first known case of computer program software piracy occurred in the reproduction of the Microsoft program Windows 95, at the time the term that was used to describe software piracy was warez but over the years the term software piracy was adopted (Gulliard, 2007).

The present threat posed by software piracy is disturbing, it is estimated that two thirds of all software application program that are currently in use are pirated, and so is the case for the current soft ware programs that are in the market, and the situation can only get worse. Back in 1998 during the computer revolution period the number of pirated software program stood at less than below 30%. Over the years the situation has deteriorated as more clever methods are invented to counter and circumvent the present measures that are in place to prevent piracy. With software piracy business being a multimillion dollar industry the number of players and sophistication is a big threat to the industry stake holders that have to keep inventing new method of countering software piracy (Gulliard, 2007).

The current global loss in revenues due to trade in software piracy is approximately $50 billion dollars, with the highest rate of software piracy worldwide occurring in China, Indonesia and Vietnam with piracy rates in software application programs exceeding the 90% mark. The trend has been attributed to lack of regulatory mechanism and inability to enforcing the existing often weak legislation in these countries (Gaskin, 2006).

The Canadian Alliance Against Software Theft, the watchdog body against software piracy in Canada stats that piracy in Canada continues to be a growing problem that is costing the industry billions of dollars. The piracy rates for the country is at 50% meaning that one in every two software program is pirated, with the implications reaching far and wide. Increased software piracy stagnate the growth in the Information Technology industry which is a key industry, this in turn lead to job cuts and contribute to unemployment level. Besides software piracy is an economic sabotage to the patented companies which usually relies to income from the sale of their software application program to end users that also result in company bankruptcy. The implications do not end there because trade in pirated software usually is not of right quality or meet the required standard resulting in further financial loss to the unsuspecting users and to the economy in general (Gaskin, 2006).

The Canadian laws that regulate software piracy just like in many other countries have recently been developed in order to address the challenges that are posed by the threats of Software piracy activities. The Canadian legislation and laws on software piracy are contained in different various Amendment Acts i.e. copyright laws as defined in the Copyright Act that is not limited to software works. Under this law a person original work in any field can be copyrighted to prevent copying, distribution or otherwise, it is the single most comprehensive Act that best addresses the issues surrounding software piracy. The other legislation Act that safeguards illegal copying and reproduction of software program is the Patent law; this law regulates software piracy by providing rights to an invention work and limiting it use and reproduction to the holder of the license. Patent laws in Canada are however limited in terms of duration and are not automatic but requires one to obtain a license (Bowley, 2009).

The law on Trade Secrets and Confidential Information is also used to protect and regulate software piracy. It states that a user has an obligation to ensure that information received is not distributed or copied to the unfair advantage of the owner or the source. Other laws that are used to regulate software piracy are contracts that usually outlines the term of understanding between the parties. A trademark which is a product signature that serves to authenticate a product and deter illegal reproduction and finally criminal law where instances of software piracy qualify under this category (Bowley, 2009).

In the case of Microsoft Corporation versus Ontario limited case number 1276916 in the federal court of Canada, Ontario limited company was sued on one count of copyright violation through illegal copying of Microsoft Computer Windows program, installation and distribution without copyrights to do so or a binding agreement between Microsoft Incorporation and the defendant. Microsoft Incorporation has instituted the case under the Canadian copyright laws that covered software piracy for trading purposes (Mandamin, 2009).

Further Ontario Limited company software activities in the reproduction and sale of Microsoft software was termed illegal since no monetary remittance were provided to Microsoft that it acquired through the sale of the pirated software, therefore Microsoft sought monetary compensation that occurred through loss of sales, additional fine and cost of instituting the legal process. Besides this the plaintiff wanted an injunction that barred Ontario limited to desist from illegal reproduction of any of Microsoft software's. The plaintiff, Microsoft Incorporation worn the case and was awarded damages of $80,000 and punitive damages of $50,000 including the cost of the suit which was to be met by the defendant (Mandamin, 2009).

The second case that also sale and distribution of Microsoft incorporation Symantec Software's was an appeal case in which the defendants Ross Borge and his company Raeco industries were appealing against a court sentence which had found them guilty of illegally copying and reproducing Microsoft software's program. In the appeal case the appellants had sought dismissal of the sentence on the grounds that the trial judge did not consider the fact that the appellant did not have ability to judge the authenticity of the fake software program in question. In doing so the appellant claimed was not given the benefit of the doubt from the onset and his evidence was not considered in arriving at the sentence (Tulloch, 2006).

In the subsequent hearing the sentence was upheld and the appeal case dismissed by Justice Tulloch having found that the trial judge considered all the relevant facts in the case and used his discretion on imposing a prison sentence to the appellant. Therefore the appellant would abide by the earlier sentence by serving a sentence of 60 days in custody, besides having to pay damages totaling$75,000 that also included fine imposed on his company Raeco Industries (Tulloch, 2006).

While the case first case of Microsoft Incorporation versus Ontario limited was direct and quite straight forward, the issues that involved the second suit were varied and complicated. In Microsoft versus Ontario Limited the judge was right in finding the defendant guilty in absence of any supporting evidence that would have mitigated the sentence, in fact Ontario Limited activities was purely a case of software piracy where the defendant willfully discharged all the actions pursuant to software piracy with full knowledge and a level of determination from the onset that included, copying of the software, its reproduction, installation on customers personal computer and the clever trick that required the customers to signing a document that would shift the liability of the software piracy to them (Mandamin, 2009).

The second appeal case instituted by Ross Borge and Raeco Industries however had other factors that I feel the judge should have been more considerate. Foremost the case was instituted between both the company and Mr. Ross Borge for the same offence, the trial judge imposed fines between both Mr. Borge and the company. In addition the trial judge sentenced the defendant to serve a prison sentence of 60 days, a sentence that I find to have been harsh to say the least; one because there was no clear evidence that was presented to show that Mr. Borge willfully traded in fake Microsoft products knowingly. It can be said that it is possible that Mr. Borge knew he was dealing with genuine Microsoft software's, second the prison sentence was unwarranted in that Mr. Borge was not a repeat offender (Tulloch, 2006).

In conclusion the depth and breadth that the existing regulation covers need to be widened to cover new aspects in the field of software piracy that are bound to emerge. It is therefore essential for the government to involve the various stakeholders in amending the existing various acts that regulate reproduction and use of pirated software.

References

  • Bowley Kerr. (2009). Computer Software Law in Canada. Retrieved April 11, 2010 from http://users.trytel.com/~pbkerr/computer.html
  • Gaskin James. (2006). Business Software Alliance: Outright Liars or Just Truth Challenged? Retrieved April 11, 2010 from http://www.networkworld.com/newsletters/sbt/2006/0626networker3.html
  • Gulliard Frederick. (2007). Software Piracy: Some Facts, Figures, and Issues. Washington, DC: McGrow Hill Press.
  • Mandamin S. Leonard. (2009). Microsoft Incorporation V. 1276916 Ontario Ltd., 2009 FC 849 (CanLII). Retrieved April 11, 2010 from http://www.canlii.org/eliisa/highlight.do?text=software+piracy&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/fct/doc/2009/2009fc849/2009fc849.html
  • Tulloch Justice. (2006). R.V. Borge, 2007 CanLII36083 (ON S.C.). Retrieved April 11, 2010 from http://www.canlii.org/eliisa/highlight.do?text=software+piracy&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/on/onsc/doc/2007/2007canlii36083/2007canlii36083.html

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