Is it illegal to infringe copyright if your boss or your client ordered you to do it?

Question

The first possible scenario is this: suppose you work in a company, and you need to install some software for a client. The software needs to be purchased, but the boss tells you to just download it for free illegally (infringing copyright). You tell your boss that of course that's illegal and it's not the best way to do the job, but they tell you: "I know, but who cares, just download it for free". If you did it, who would be responsible for the illegal download in this situation? If you are responsible, how should you deal with such a situation?

The second possible scenario is this: suppose you are a freelance software developer, and your client asks you to install a thing for them. They give you a link to an unofficial website where you can download the stuff for free (illegally). You tell them it's illegal, and the stuff should be purchased. They tell you: "Who cares, I'm not going to spend any money for purchasing it, your job is just to do exactly what I've told you, that is, just install it, and that's it". Again who would be responsible and how should you deal with this situation? Of course here there's always the option to not accept the job since you are a freelancer, but I also wonder if there are other options in theory. For example, maybe the client could download the software illegally themself, and then only give it to you for the installation?

Location of the scenarios: any States of United States or any Member States of the European Union, but only one jurisdiction at a time.

Is this question essentially "Is it illegal to break the law, if someone else asks me to do it?"? ...Yes. — BruceWayne, Feb 15 '19 at 16:25
Substituting a few words... "First scenario, your boss wants you to rob a bank for a client. You tell your boss that of course that's illegal but they tell you, 'I know, but who cares, just rob the bank'. If you committed the robbery who would be responsible? The second possible scenario, your client asks you to rob a bank. They tell you, 'who cares, I want that hoard of cash'. Again, who would be responsible? I wonder if there are other options. For example, the client can commit the robbery and then give you the cash so that you can launder it for them." — Fixed Point, Feb 15 '19 at 16:30
If this were OK, hit men wouldn't be criminal liable for murder, only the person who hired them would be. — Barmar, Feb 15 '19 at 20:06
@FixedPoint and others, for murder or robbery it's clear you are obviously committing a serious crime anyway, so I would not have asked a question about that. However, copyright law is more difficult to understand, lots of people have to deal with it on a regular basis, and infringing it in some cases is perceived to be a "petty crime" by several people. Just to say that I don't think my question is as stupid as it may sound. — reed, Feb 15 '19 at 23:04
@reed That's the thing though. It is a crime even if most people think it is a "petty crime". In fact, this perception of using pirated software not being a "real crime" or being a "petty crime" is why the problem of piracy is so huge and persistent. Piracy is theft of intellectual property. My analogy with a robbery is tongue-in-cheek, yes, but it is not that far off. Theft is theft and you are asking if it is okay to commit a crime if my boss or my client asks me to. Would you be okay with the petty crime of robbing a $100 if your boss asks you to? Clear cut, please just don't do it. — Fixed Point, Feb 15 '19 at 23:15
I could be wrong, but isn't copyright infringement a civil rather than criminal matter? So while robbing a bank is illegal, copyright infringement would be more rightly described as 'unlawful'? Not sure if this distinction really matters much, but the analogy of robbing banks or killing people isn't great. — Joey Sabey, Feb 16 '19 at 16:27
Not a legal answer, (I'm a systems engineer) but so you are aware, sysadmins and the like who have done this kind of thing on a larger scale and been caught by the Business Software Alliance have been held personally liable for large civil damages in addition to the company they did it for getting hit with big fines. — HopelessN00b, Feb 17 '19 at 02:07
@JoeySabey in many (most?) places generic consumer copyright infringement is a civil matter, but the scenario described above (for commercial gain) is a criminal issue, and the process is literally the same as for robberies. — Peteris, Feb 17 '19 at 03:39
"For example, maybe the client could download the software illegally themself, and then only give it to you for the installation?" In the United States, when two people act together to accomplish an illegal result, you can be criminally liable even if the only acts you took wouldn't have been illegal were they not part of cooperating to achieve an illegal result. A lookout breaks the law too, even if he never sees or does anything but look. — David Schwartz, Feb 17 '19 at 04:23
Obviously it's illegal, but the question seems to be whether you would suffer repercussions, or just the company. — user253751, Feb 17 '19 at 21:25
@reed: soooo....murder and robbery are "serious crimes", but theft is not? So you'd be OK with me breaking into your house and stealing your stuff? OK...where do you live? — Bob Jarvis - Слава Україні, Feb 18 '19 at 12:20
side comment, but hopefully constructive: there's a lot of open source software that can do what paid software does, so as you politely refuse to install the proprietary software, do offer to install an open source competitor. — PatrickT, Feb 18 '19 at 18:07
@BobJarvis: Many actions. such as taking other people's property, that would be illegitimate if done without permission may be perfectly legitimate if done with permission. Other kinds of action, such as killing people, are illegal with or without permission. Someone who receives a statement in writing from the boss stating that the company has received permission to do X would be entitled to act on that basis unless the action would be illegal even if done with permission, or there was some reason to doubt that the company had actually received the permission claimed. — supercat, Feb 18 '19 at 18:24
@FixedPoint theft is theft iff the owner no longer has free enjoyment of the item stolen. Piracy is copyright infringement. Although RIAA shills would have it otherwise, copyright infringement is not theft. — mcalex, Feb 19 '19 at 07:54
In all cases the client will be responsible for using illegal software. Why? Simple reason - if the responsibility is for the person who installs the software, it would be very easy to use software for free. Pay somebody to install it and... you are not responsible. You may not know the name of installer, he can travel between cities to "install". Imagine that you use stolen car and tell police "I found the car and decided to use it, I have not stolen it". — i486, Feb 19 '19 at 14:58
I think you could clarify a bit more the second part of the question. Assuming you are just contracted to install a piece of software and do not even need to know how it is licenced and if it was legally obtained, than it is not part of you job to check if there is a legal licence. In this situation you are not paid to obtain a (illegal) licence, but for installing a software given to you. If you think of the second part like this, I guess some parts of the current answers would not apply. — allo, Feb 19 '19 at 15:33
For those who missed @Mazura 's reference: Nuremburg Defense. — Carl Witthoft, Feb 19 '19 at 16:02

Paul Johnson · Accepted Answer · 2019-02-15T13:59:32.637

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There are two parts to copyright liability: civil and criminal. TL;DR: both cases are criminal offences, and it is illegal to break the law even when you are paid to do it.

In the USA criminal copyright infringement requires a deliberate act to infringe copyright for commercial gain. Both of the scenarios meet these requirements.

In the UK (and probably the rest of Europe) criminal copyright infringement includes

possess in the course of a business an article which is, and which you know or have reason to believe is an infringing copy of a copyright work with a view to committing any act infringing the copyright.

Again, both these scenarios meet this requirement.

In the first scenario you are acting as an employee, so you don't have any personal civil liability for damages; that goes to your employer. However you still have, at least in theory, criminal liability.

In the second scenario you are your own employer and so have both civil and criminal liability. Your client will share some liability as they have provided inducement to break the law.

The best way of dealing with the first scenario is to point out to the boss that he is ordering you to commit a crime. Cite the law in your jurisdiction and the penalties for breaking it. Do this by email so that you have evidence of having told him, and take a printed copy of the email home with you just in case (if your boss isn't above criminal copyright infringement he may also not be above tampering with evidence). If you are in a big company then a CC to HR might also be indicated. If the boss is the company owner then you are in a stickier situation; your best option is probably to perpetuate the evidence as above and start looking for an employer who doesn't break the law.

The second scenario is simpler: just refuse to do it.

edited Feb 15 '19 at 13:59

answered Feb 15 '19 at 12:16

Paul Johnson

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TL;DR It is illegal to break law even if you are paid to do it ;) – Mołot Feb 15 '19 at 13:55
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Not only is it illegal even if you're paid to do it, it might be more illegal if you're paid to do it, since now there's the possibility of a criminal conspiracy charge (potentially even before you actually download or install any software). – 1006a Feb 15 '19 at 17:16
Where is the commercial gain from doing this as an employee? It seems to me that, short of getting fired, the OP will get paid his salary whether he installs the software or not. Perhaps instead the employee could be liable for aiding and abetting by following his employer's instructions (since it is more clear that there is a commercial gain to the employer)? – JBentley Feb 15 '19 at 18:47
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Correct answer however working in this sector for many years I can tell you this has almost a zero chance of being prosecuted criminally. I mean you would only have a .0001% chance of prosecution criminally if you had a blog that outlined your activity. There simply aren't police that monitor illegal software. This is 100% a civil issue. Speaking of it as a criminal issue is blowing this well out of context. Criminal would be downloading and selling the software - and even that is dealt with on a civil basis 9 out of 10 times. – blankip Feb 15 '19 at 20:15
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@blankip until the client notices it's illegal software and calls one of the "report unlicensed software for money" lines. – TemporalWolf Feb 15 '19 at 21:37
Re: HR, medium or larger companies have HR departments which unfortunately are often legally uninformed and generally toothless, especially on matters like this. Large companies also frequently have Legal departments which are usually much more competent and organizationally capable of addressing a situation like this. – RBarryYoung Feb 15 '19 at 22:22
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@TemporalWolf My understanding of these lines is that they're private, and hence deal with civil liability. Certainly the BSA was known for settling in exchange for software purchases, which isn't something a criminal court would do. – David Thornley Feb 15 '19 at 22:24
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@blankip, can you explain why sometimes copyright infringement is dealt with civil law, and other times with criminal law? Does this mean it's not always a crime? Who or what makes this distinction? – reed Feb 15 '19 at 23:39
@JBentley If not doing what your boss asks will lead you to not get a bonus, raise or promotion, would that count as commercially gaining as an employee if you did download the software illegally? – Feb 16 '19 at 00:03
In most jurisdictions, employees are civilly liable as well as sheeting vicarious liability to the employer – Dale M Feb 16 '19 at 07:35
@reed The police and public prosecutors have discretion in what crimes they spend resources investigating and prosecuting. In the case of copyright infringement, the cost is fairly high in comparison to the amount of money that is usually being lost (they need to track down your ISP, get a warrant, find you that way, prove who actually downloaded it, etc). The amount you've stolen would probably be comparable to shoplifting, which is both cheaper to investigate and has a nonzero chance of going from non-violent to violent, and they won't even always investigate that beyond looking at tapes. – IllusiveBrian Feb 16 '19 at 14:33
@reed to go even further in elaboration copyright violation doesn't have to result in any punishment. Copyright is up to the discretion of the holder. For instance, a court can't send you to jail if the entity whose software you took says "Don't arrest this person, they have permission." or "I'd prefer to sue them for money and not press criminal charges.". So a company could just have a stance on copyright such that they don't personally feel it should be criminal and only seek civil suits, regardless of police motivation. But this doesn't make it ethically right nor should you rely on that. – user64742 Feb 16 '19 at 20:12
Where is the commercial gain for the employee? He gets paid the same whether he does it or not. No commercial gain. This also blindsided Randal Schwarz, when he was asked if his routine pen-testing of his employer's servers was "for personal gain", and he thought the very concept of being an employee meant all actions as an employee constituted personal gain, because the gain was the salary. Actually, they meant other than that e.g. Private benefit e.g. Inurement. – Harper - Reinstate Monica Feb 16 '19 at 21:47
What happens if in the second scenario the demand comes up after you have already signed the contract, and moreover the contract terms said that the employee would not be required to pay for any additional softwares required? Would the consequences (and how respectable people would look at your character years in the future) of then reneging on the contract to avoid the crime at least stand a high probability of being significantly milder than those for the criminal infringement? Could you even successfully argue in court the contract could be reasonably considered invalidated at that point? – The_Sympathizer Feb 17 '19 at 00:03
@blankip I mostly agree, but illegal use of some software carries a significant risk. I'm thinking of Autodesk products. All our software is legit, and we wouldn't have it any other way. – Mike Waters Feb 17 '19 at 01:40
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@The_Sympathizer You cannot make a contract to do something illegal, if that is what you are asking. – Paul Johnson Feb 17 '19 at 09:18
@blankip Not absolutely true. We had a case in 2000 in Czech Republic when Microsoft started a criminal prosecution of an e-shop. The cops paralised the company for many months, courts ended after years, some of them are actually in progress. If something like that happens and somebody knows about it, it can be a way to destroy competition. – Sulthan Feb 17 '19 at 22:18
It is better to use voice recorder to store the "order". – i486 Feb 19 '19 at 15:00
@i486 The legality of that is a whole other question. – Paul Johnson Feb 19 '19 at 15:05
@PaulJohnson I agree but can have useful "psychological effect". The boss may not risk perjury if he knows about the record. – i486 Feb 19 '19 at 15:10
This isn’t exactly a legal issue, but there is a practical problem. I think everyone knows the real right answer is “Don’t do it, and report your boss.” But at least in the US, everyone also knows that if you do that, you will get fired, and no one will do anything to help you (or punish the boss) even though you were legally right. – SegNerd Jun 25 '21 at 22:56

score 28 · Answer 2 · answered Feb 15 '19 at 17:05

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I'm in the UK. I have been put in both these scenarios in times past. For the first I stood up to the boss and point-blank refused to do it, giving reasons. The atmosphere was tense for a couple of days, then he apologised and thanked me for taking the moral (and legal) high ground. The second was a little trickier, I still said I would not install hooky software, but I had to be a lot more diplomatic with the client. Eventually, they recognised my standpoint and said upon paying the bill that they would probably do it themselves later.

Stick to the law where you are. Remember that even in the military, obeying an unlawful order is still unlawful.

answered Feb 15 '19 at 17:05

Alopex

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Welcome to Stack Exchange. Please be aware that as this is a Q&A site and not a forum, answers need to address the question and need to be on-topic for the particular site. In this case you're posting on Law Stackexchange, and the question is asking whether or not something is illegal. Your answer should address the legality of the proposed action rather than just providing a commentary of your own experiences. Your final sentence hints at being on-topic, but more expansion for the specifics of the OP's case would be needed for this to be a good quality answer. – JBentley Feb 15 '19 at 18:59
@JBentley with respect, the question stipulates that the actions are illegal, so it's not asking whether they are; it's asking whether the OP is indemnified against the consequences of the illegal act by following the orders of either a superior or a client. I found Alopex's experience helpful, and apparently so did quite a few other people. – MadHatter Feb 19 '19 at 15:57
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@MadHatter The first paragraph still does not answer anything about indemnification. Helpfulness is great, but doesn't turn it into an answer. And I personally find it not helpful at all -- I have no reason to believe that anyone who might try this with me would behave similarly to the two people they interacted with. – Matthew Read Feb 19 '19 at 16:00
@MatthewRead fair enough, that's what downvotes are for. Leaving aside my personal support for the answer, JBentley's criticism that "the question is asking whether or not something is illegal" is still wrong. – MadHatter Feb 19 '19 at 16:04
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@MadHatter I don't agree with your analysis of the question. The title is very clear: "Is it illegal to infringe copyright if your boss or your client ordered you to do it?". This is further clarified by "If you did it, who would be responsible for the illegal download in this situation?". Note the difference between: (1) "Is X illegal?"; (2) "X is illegal. If I am ordered to do X, will I be indemnified?"; (3) "X is illegal, but illegal to which party?". This question is of type (3). – JBentley Feb 19 '19 at 16:21
@JBentley I agree that the title asks whether something is illegal, but the question doesn't, and you said that it did. Since generally questions are longer than titles and therefore contain more precise descriptions of problems, I'd say they trump titles, so I am unworried that the title inaccurately characterises the question - that's fairly normal for SE. The rest of your analysis I mostly agree with, though I'd say class (3) was "X is illegal, but on whom do the consequences fall?". – MadHatter Feb 19 '19 at 16:33
@MadHatter My comment wasn't intended as a nitpick over contradictions between titles and bodies. Indeed I don't see a contradiction. To clarify further, what I am saying is that the question is asking "Is X illegal [specifically for me, the person obeying the order]?". There is no such thing as a position in law where an act can be illegal for person A but the criminal liability falls on person B, so I don't believe the question is asking "on whom do the consequences fall?". Rather it is the illegality itself which is questioned. – JBentley Feb 19 '19 at 16:37
You may believe that. The questioner, on the face of it, doesn't. Do, by all means, criticise Alopex for failing to answer the question; but to criticise him/her for failing to answer what you personally are sure is the correct interpretation of the question seems a little rich. – MadHatter Feb 19 '19 at 16:57

jmoreno · Answer 3 · 2021-07-11T21:29:18.567

Well, there are cases where doing something without permission of your boss is illegal, there’s really no case where doing an illegal act becomes legal because your are being paid to do it…with the exception of acting on behalf of the government (for instance imprisoning someone is generally illegal, but prison guards do it all day long).

Given that we are dealing with copyright, there could be some subtleties to this: copyright and licensing agreements are not the same thing. It could be legal for you to download and use something (from a pirate site and without following the license), but illegal to install it on a different computer or even the same computer if that computer is not yours. And different countries have different copyright laws, even if they have signed the Bern Convention and not all countries have.

But again, if it is illegal for you to do so, it will still most likely be illegal if told to do so.

I am not an attorney and I am not YOUR attorney, if in doubt about the legality of an action get your own attorney and get a professional opinion. “I consulted JC, Esquire of the firm JC and Partners and was told my actions would be permissible under section X of the law”, is likely to help if you end up in court, “a bunch of unknown people on the internet said it was OK, they even referenced title 7 in section 3 of the international legal code as amended on July 3, 1973” not so much...

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

kisspuska · Answer 4 · 2021-06-27T03:17:02.060

TL;DR

In Hungary, the matter is less straight forward as it is suggested by analogies about bank robbery and murder in the comments and answers.

It potentially is, and you would most certainly not be prosecuted for it on criminal grounds, and the boss is likely depending on facts.

In general, Hungarian law presumes that the public engages in the pirating of artwork subject to copyrights. (I'm serious!) And it compensates the copyright owners by imposing a general data storage tax on all non-transitory storage medium, including thumb drives, memory cards, SSD's hard drives, optical disks etc. Accordingly, it is not a crime to create any copies of any copy right material as long as it does not create profit even indirectly.

Although, according to the Penal Code:

Infringement of copyright or rights related to copyright

Section 385 (1) Any person who infringes the copyright or related rights of another or others under the Copyright Act by causing pecuniary damage shall be punishable for a misdemeanor by imprisonment for a term of up to two years.

§ 385 (5) A person shall not commit an offense under paragraph (1) who infringes the copyright or related rights of another or others under the Copyright Act by making sharing for reproduction or for retrieval, provided that the act does not serve the purpose of obtaining profit even indirectly.

Accordingly, not only there is a high bar to hop in that the law requires that the infringing cause "pecuniary damage" which in many cases you may argue it does not, as someone who downloads does not necessarily intent to obtain the copyright art any cost; in fact, downloading copyright material is usually driven by financial reasoning rather than convenience considerations especially in 2021.

Those who would meet these high bars would also not be subject to the exemptions of paragraph 5 which allows infringement for the purposes of sharing the copyrighted material or sharing for the purposes of retrieving. This particular provision provides strong immunity against criminal culpability for the most typical uses of using torrent sites as long as such infringement "does not serve the purpose of obtaining profit even indirectly".

You used to be able to run into cops buying PSX games to their chip-tuned Playstation consoles in gaming shops in their uniforms more then one at the time. So you can imagine how seriously this is actually prosecuted.

And it probably goes hand-in-hand with the fact that the law allows one to go so far that a layman is not expectable to actually be aware of such nuances, for example, whether as part of their employ and generating profits for another would also make them culpable despite they did not generate profits for themselves and would only be compensated as they would be otherwise as part of their employment. It is very much reasonable to expect a judge would decide that a wage is not profits even for the purposes for this Section of the Penal Code, and you're off the hook. Even if it did find that the business profited from the act, and you therefore engaged in the creation of profits indirectly, there is a chance you would be found not be culpable having acted in "error", that is, you misunderstood the law because of its succinct form. (By the way "error" relieved a law professor in the U.S. about a tax code that he misunderstood despite being a law professor. There the argument was that, given his accolades, he should have had no difficulty understanding it, and not understanding it signals an issue in the law.)

Overall, since law enforcement and other authorities probably foresee these traps of prosecuting a case like this, they would likely not even get started. No case has reached media attention for years, and it would if someone would be prosecuted for copyright matters like these.

Civil liability could possibly work, but absent punitive damages or civil penalties, it is absolutely not worth it for any author or copyright holder to seek them. You would not receive more than the reasonable price of a copy of your copyrighted material.

All in all, you would probably be safe to install whatever your boss tells you even to a cop in uniform.

Is it illegal to infringe copyright if your boss or your client ordered you to do it?

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