Yes, downloading is akin to making a copy without consent of the copyright owner. (Edit: At least according to the Berne Convention, which most countries have signed.)
Edit2: I think dchest is right and illegality of the act of downloading does probably not follow from the Berne Convention, sorry. Distribution (offering for download) certainly is and I think at least according to German law the resulting copy has to be destroyed. Mind you, I'm no lawyer and might be mistaken.
I'm pretty sure Berne Convention says nothing about the act of downloading. Your use of "akin" may be incorrect. Of course, different counties have different laws, but if we try to infer legality or illegality of downloading purely from Berne Convention, I'd like to ask this question: how can you make a copy of something that you don't have the original in the first place? Thus, it's more likely that the party who's distributing the work is making a copy, not the downloader.
Theoretically yes but usually they target distributors in preference to users. It's easier to get a verdict or judgment against the distributor because it avoids the question of "what is a copy" and how that applies to the digital space and also because people are less sympathetic to distributors. The thing with P2P applications is that everyone is also automatically a distributor.
Yes it is! It is illegal in the Netherlands to download pirated software! It's only for music & movies where this doesn't count! See e.g.
http://www.iusmentis.com/maatschappij/juridisch/magdatopinte... , whose author is to put it mildly not known for being pro strong IE laws.
This is a source code file from my program, for which all rights belong to me. It has been obtained and put there by my wife without my permission. By opening this link you made an illegal copy of it. You'll soon hear from my lawyers.
This is not 'pirated software', it's leaked source code. That makes distribution copyright infringement and downloading in good faith legal.
If the source code is distributed then the user would have to download it in order to be able to see the copyright statement. In this case the title of the software will probably be reason enough to make it hard for you to argue that but technically you could claim you thought this was a source distribution and only after you downloaded it you found out that it was copyrighted and not meant for release.
If you keep the source code after downloading and finding out that it was copyrighted and not meant for release the situation becomes gray, after all nobody actually knows you've still got a copy, it might be that you deleted it upon finding out that it was copyrighted stuff. It will be pretty hard to prove that you still have a copy if you yourself do not make it available and if you defend yourself by saying you acted in good faith and destroyed your copy immediately after download and inspection. The act of downloading is not what matters here, what matters is what you do after downloading. I am not aware of any Dutch citizen that has been charged with downloading leaked source code, let alone a conviction. Source code has been leaked before and typically if there are steps taken it is against distributors, never against those that downloaded.
Downloading binaries is a different story, there you are clearly in violation.
If it wouldn't be like that how would you ever verify that it is legal for you to download any software at all (for instance an open source distro), after all typically you are not shown the license agreement prior to download but upon installation (or, in many cases after that).
This does not make sense in any legal sense, I mean not make sense like someone saying "I was programming html yesterday by uploadeding some ram chips into my programming software".
Works are by default copyrighted, it doesn't matter if the user has to download the copyright statement or read it or whatever - copyright is a ius sui generis, it has nothing to do with contract law. Furthermore downloading is distributing, see paragraph 5 of the Auteurswet; and no in this context it does not fall under the exceptions of art 13a.
Then, there is no "good faith" exception. This is completely irrelevant. The "thuiskopie" (home copy for non-Dutch speakers following along) is allowed explicitly through articles 16b and c of the Auteurswet ("Authors Law", Dutch copyright law). However there is an exception for software in art 45n that explicitly says that artt 16b and c are not applicable to works as defined in 10, 1st paragraph under 12. And when we look at that article, it defines software as "computerprogramma’s en het voorbereidend materiaal", meaning "computer programs and their preparation material". One could argue that "computer programs" already comprises source code but we don't have to - they are explictly defined as being treated the same as "software", however one may want to define that in itself (it is probably in the parliamentary history but I don't at the moment have access to Kluwer Online (the Dutch equivalent of Lexis Nexis) to check.
The rest makes equally little sense - no, it doesn't "become grey" if you decide not to delete it, all of that is completely irrelevant. It is the downloading that matters! This is the only thing the Auteurswet sees to, it says nothing of what you do with it afterward! (also, I'm using many exclamation marks in this post! Sorry about that!)
As for the last sentence, again reading the licence is irrelevant. What is relevant is the intent of the author. How that intent is communicated doesn't matter; in most cases it will be done through putting the link to the software somewhere and putting 'hey download my software here' or so next to it.
Way to side-step the substance of the discussion... If you're going to make outrageous claims like "Distributing it is illegal where I live, but downloading it is not." and "This is not 'pirated software', it's leaked source code. That makes distribution copyright infringement and downloading in good faith legal.", either stand by them and defend them in an intellectually honest way, or refine or explain your statements if I/other readers misunderstood them, or abandon your position all together. All you're doing now is arguing a straw man to not have to do any of those.
Besides, what, in your opinion, does you posting this link show? That it is factually possible to trick people into downloading copyright-protected works without the author of that work's consent? Please, you think I or anyone here needed convincing of that?
No, it simply means that the act of downloading source code in and of itself is not illegal.
Your intent, the circumstances and what you do afterwards figure in to the discussion as well.
You want to make it seem as though the simple act of downloading copyrighted software is illegal and I think that it is not that simple.
In practice the situation is complicated, and since there is no enforcement against downloaders of software that is illegal whatsoever anyway the whole point as far as I'm concerned is moot.
@your first sentence: IT IS. How can you interpret the Auteurswet any other way? Please tell me how you can come to this conclusion because I really do not understand how you can honestly make this claim.
@the third, IT IS, it says so right in the Auteurswet that I quoted several sections from a few posts up, explaining exactly why your reasoning was wrong!
And you of course the factual situation is so that it makes the legal reality irrelevant. But it's not because stealing a bike in practice does not have any consequences that it is legal. (I'm not trying to move this into a copyright violation/theft discussion, it's just an example of another infraction of the law). My beef here is that you are making broad sweeping, demonstrably factually wrong claims about the law and then weave a web of straw man and vigorous assertion fallacies to not have to address them.
I think the main problem here is that you approach the law as literal as possible without looking at the circumstances surrounding the issue.
I think that intent of a law matters, and I think that circumstances matter (a great deal in fact, in this case).
You refer to a text on 'pirated software', that is simply not the same as leaked source code, at least, not in my interpretation of the meaning of those terms.
The intent of this particular law is not to cover leaked software source code distributed by rogue employees but its intent is to cover the wholesale piracy of software for commercial gain, as well as piracy of commercial software by individuals to avoid paying for it. And the only parties that I'm aware of that have ever been prosecuted under that particular law with success are the whole sale distributors.
If someone were to download this software there is no judge in the Netherlands that would either fine them or jail them for that under that particular law. If there is proof to the contrary I'm not aware of it.
No, I approach the law as a given situation, as it currently stands in the land. A law degree tends to do that to you.
What I have said repeatedly, and what I have shown to be true by statute, is that source code is software for purposes of copyright and exemptions thereof. Your interpretation of those things is irrelevant. It's not because you think or feel that those are different, that they actually are. Additionally, the intent is not limited to what you claim, I have no idea why you would think so. It is a generic instrument to prevent unauthorized copying of works. Furthermore, the exceptions for personal use that do exist are explicitly declared not applicable to software and source code. So any 'non-commercial' angle one would take, simply does not hold when it comes to software.
No, I just have a Dutch law degree. I'm a programmer by day (I also have what is more or less the Belgian equivalent of a Business Information Systems degree). I did my law degree as a hobby. I haven't decided yet if I want to move into the legal profession.
Crappy excuse, because it applies to binary software too.
I find a file called "Microsoft Office" on a torrent site, I don't know the license until I download it.
If you're going to argue "but you can Google it" then (a) the same applies to source code, and (b) put some abandoned but stil payware & under copyright title instead of "Microsoft Office" and the argument will hold (Google won't help).
Hey, I'm not disagreeing with you. Only saying that your example is not actually applicable, because it's nothing to do with having seen the EULA. It's all about intent.
> If the source code is distributed then the user would have to download it in order to be able to see the copyright statement. In this case the title of the software will probably be reason enough to make it hard for you to argue that but technically you could claim you thought this was a source distribution and only after you downloaded it you found out that it was copyrighted and not meant for release.
The Netherlands has been a signatory of the Berne Convention since 1912. Under Berne, copyright must be automatic, so saying you had to download it to check if it was copyrighted is probably not going to get you very far.
That is a good point, and yes, if you were to download this torrent it would probably be wise to set the upload bandwidth to '0'.
As for whether or not it is useful, I can see only two parties that are potentially interested in downloading this code, the first are malware makers, I don't think they'll have any qualms about downloading it, illegally or otherwise, they're criminals already, one more notch on their belt will not make a difference.
The second are researchers that want to make sure that now that Kaspersky no longer has control over their code that there are no exploits that will be known to the 'bad' guys but not to the good guys.
If that is your game and you're a professional with a good reputation and you alert Kaspersky to any holes that you find you again will be operating in a 'gray' territory but I think the law would land on your side. Anybody else downloading this is probably doing it for all the wrong reasons.
Not that a competent security researcher would need access to the source to do his job.
I'm on the fence about that one. I used to sell licensed software and of course I lost plenty of money due to piracy (if a prospect cancels a sale but turns out to be running the product after all I think that qualifies ;)). Piracy is illegal (of software), but this case deals with source code. Now it is of course possible to see the name of the file and wonder 'hey, isn't that copyrighted software' but you could make that call for every package and you'd get a bunch of people arguing that the only way open source can function is by allowing people to download stuff, then verify the license is 'legit', compiling it and running it.
So there are good reasons for not criminalizing the downloading of code, and the responsibility of anybody that does download code is that they will deal with it in the proper way once they find out the terms. If the code says '(C) 2000-2007 Kaspersky Inc, NOT for distribution or resale' at the top (I made that up), you will probably have a good idea that it's not wise for you to proceed, if on the other hand it has an open source license as a rider and you can not find anything wrong with it after careful inspection you should be free to proceed.
To make an insightful decision you'd have to download it first.
It doesn't, because there's no transfer of anything here (well of the work itself, I mean of no legal thing, I'm not sure what the exact name in English is - "property right" or something I guess). There is no right on the work that is transferred by someone making a home copy; it's merely explicitly excluded from being an infringement on the author's copyright.
So the person doing to uploading isn't transferring anything of legal substance (which, if he doesn't have any rights on the work himself, can't, as you say).
Ok let me try again. In the following, 'Auteurswet' is the Dutch copyright law. Also, there are three parties in the example: 'the uploader', the one who provides the work and is assumed not to be entitled to do so (for the example); 'the downloader' who makes the copy; and 'the author', the holder of the copyright.
Also, 'nemo plus iuris' is an abbreviation of 'nemo plus iuris transferre potest quam ipse habet' which means 'nobody can transfer more than he has'. It's a cornerstone of property law which, in the context of physical goods but also of other property rights, means quite obviously that if you don't have rights to something, you can't transfer those rights to someone else. This may seem obvious but it comes into play when rights are retroactively discovered to have never existed at all (which is much more common than one might suspect; for example in cases of bankruptcy, non-payment with a reservation of ownership clause, ...). Then transfers of goods can be invalid and this has serious implications for purposes of ownership, repossession etc.
Anyway, back to the case at hand. First we need to distinguish between two things that can be transferred: the rights to the software, the 'copyright' (this is not a license, forget about 'licenses', it is the copyright itself.) and the software itself that is transferred. Because in English both are described by the word 'transfer' it is extra confusing; the copyright (can be but isn't in this case) 'transferred' ('overgedragen') in the same way a deed is transferred, while the software is merely 'transferred' ('gekopieerd', copied) over the wire. 'Transferring' a copyright needs to be done in writing (art 2 sub 2 Auteurswet), for example, 'transferring' some software over the internet doesn't, obviously.
Now then, the copyright is a 'property right' ('vermogensrecht'), and is with the author (in the case of the example). It is this 'copyright' that the nemo plus iuris sees to; and since 'the uploader' doesn't have it in the first place, he can't transfer it. Which makes sense.
Why then isn't the making of the copy covered by this nemo plus iuris? It's because there is no transfer of any property right going on at all. The downloader doesn't get a property right. The Auteurswet merely says that this specific making of a copy (for personal use, etc.; details are in artt 15 and 16 of the Auteurswet) is not a copyright infraction. That doesn't make the downloader holder of any copyright, or of any property right at all. And that is why the nemo plus iuris principle is not in play here.
I'm not normally one to complain about downvoting, but could whoever did so explain why, because it seems that each time I try to bring some legal facts into this whole discussion some people feel they need to express their dislike of reality by downvoting.
Because it is absolutely dense, inscrutable and grammatically incorrect legalese. According to my best effort to understand what you were writing in the comment was: "Downloading the sourcecode is not illegal, because no actual thing gets downloaded, and if the downloader then uploads the code, that cannot be illegal since he has no right to the software anyway." That makes no sense at all.
Is it true that downloading it is illegal?