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.
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).