Professionals: unlicensed software tax treatment
In its judgment of December last year (No. 49385), the Supreme Court ruled that the use of software illegally duplicated in a professional studio does not include the offenses referred to in art. 171a l. 633/41.
The court case concerns the case of a surveyor who used 4 computers that were installed Microsoft Office programs Word, and in the absence of the relevant licenses.
The law provides for two separate offenses:
• The first concerns the behavior of anyone "duplicates, for profit, programs for computers" while the second relates to:
• the activities of anyone "for the same purpose, imports, distributes, sells, withholds, commercial or business purposes or leases programs on media that are not marked by the Italian Society of Authors and Publishers (SIAE)."
Both hypotheses have to be connoted by the same specific intent, ie, the desire to "take advantage" of duplication: in that respect, then, just to supplement the case, the mere cost savings related to the non-purchase of licenses, while it is not necessary to the 'additional requirement of the profit (the term - the latter - present in the original formulation art. Leg 10. 518/1992, but then changed to the next rule in. 13 of Law 248/2000). Even if it does not detect the activity of duplication is connected to a particular topic (entrepreneur, private or professional).
The law punishes therefore the activity of one or duplication of detention, in this second case, however, does not detect any detention, but only one made in commercial or business purposes. In addition, the detention is not related to any support, but only those without the SIAE. Integrated so that it can be said to be the crime of illegal possession, therefore, must exist simultaneously two conditions:
1) the purpose of trade or business;
2) lack of SIAE.
With reference to the first of the two offenses is to detect as early as the first-instance court had acquitted the accused because there was no evidence that he was the author of duplication: one can not infer proof that they are in fact duplication from the mere possession of a duplicate copy.
The surveyor, however, had been convicted in relation to another offense, namely that of possession for commercial purposes: on the point, the Supreme Court has however made it clear that there can be (except for very rare cases be carefully evaluated) a confusion between the profession and the commercial / business: unless it can be demonstrated that the professional carries on business with an organization that they can be treated as a real company. There remains, in fact, a difference between legal professional activities in a predominantly personal and business services - which in practice could be designed to very similar performance - done in an entrepreneurial way. And, when in doubt, the interpretation can only go in favor (and not against) the offender, given the prohibition of analogy or broad interpretation in criminal matters. In other words, the Court of First Instance had improperly expanded the ranks of illegal conduct to include even those relating to professional, although the law was limited to punish those relating to commercial / business.
The Court then develops further consideration that it is not a novelty, but rather a confirmation: since the Italian State has not (yet?) Properly notified to the European Commission its system to "stickers" (SIAE), the requirement to include the advice, there is no statutory, as established by the Court of Justice in the famous case. Consequently, the offense can not exist because the absence of the label is not - at least today - punishable.
Some issues remain in the background.
First, the Supreme Court could not directly address (precluded a matter of res judicata, since the acquittal on the point was not appealed) the problem of the "moral" of the defendant that he would somehow "sponsored" or "permitted "duplication. In any case it is good to remember that the competition in an intentional criminal offense that can not be equally malicious, therefore, can not speak of negligence or lack of due diligence in respect of an offense committed by third parties, even if employees: to affirm the responsibility of the surveyor would have to prove that he will conscientiously and had somehow worked in the activity of duplication.
In addition, the proposed interpretation seems adhering to legislative requirements only under the wording and operating an extrapolation of the concept of detention from the context of the legal provisions. The second part of Art. 171a, in fact, when read as a whole, expresses a very different value because it is the only independent and "detention" to detect, but the detention as a piece of a defined set of pipes all listed and typed: "... matter , distributes, sells, possesses for commercial or business purposes or rents ... ". In this sense it is clear that not detect any detention, but only one aimed at a commercial purpose that is the one just described, which is to make a profit selling, importing, distributing or leasing or renting media without the sticker.
The rationale seems, then, that's not much to distinguish between professionals and entrepreneurs / traders subjectively, but rather to distinguish duplication as a "means" those as "fine". So you could distinguish between professionals (and businesses) that do not trade in duplicate programs and companies, however, that they do, as if it were a kind of "social object" ...
The rule is certainly not clearly worded, but if you really material only in the subjective profile of the person who commits a crime, there would be two inconsistencies:
1. the offense at this point, it would be "just" as it could only be committed by a contractor / dealer and no one else: this is clearly against the letter of the law that constitutes the crime as "common", since it can be committed by "anyone ";
2. there would be a difference in treatment is justified (and therefore probably of constitutional significance) between professional copy the Office program and the company (which does not trade in duplicate copies ...) that copies equally Office for the accounting, correspondence etc. .... in short, using the program in the same way you use the professional, but with very different consequences: the first in fact, should be exempt from criminal liability, while the second is not, although both are pursuing the same behavior for the same purpose.
Ultimately, the detention is not designed for the purpose of selling, importing, etc. .. does not detect criminal, regardless of the qualification (professional or company) who owns.
It reiterates, in fact, that since you are talking about the second offense, not only detects the end of "profit", certainly exists in the conduct just assumed, but that particular profit generated by an activity that has as its object the marketing - to different reasons - copies of illegally duplicated.
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Translated via software
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Source:
Italian version of ReteArchitetti.it