Author: Marina Diana

Source: DCI - 28/08/09

SÃO PAULO - Purchasing pirated software is a crime. However, now, companies that adhere to this practice can spend much more than just reimbursement for programs. The Fourth Panel of the Superior Court of Justice (STJ) understood that the end user of a computer program illegally copied or acquired is subject to the sanctions provided for in article 103 of Law no. 9.610 / 98 (Copyright Law). With that, the court unanimously reinstated the first degree sentence that condemned a company from Paraná for using 58 programs without the proper license or authorization to use the North American Microsoft Corporation. The indemnity was fixed at ten times the price of each of the programs used illegally.

“The STJ acted correctly. The application of punitive damages is fair. Before, he merely paid for the program and was exempt from further punishment. This resulted, indirectly, in unfair competition to companies that do not join piracy ”, applauds the specialist in intellectual law Alexandre Lyrio, do Castro, Barros, Sobral, Gomes Advogados.

The payment of damages for Microsoft Corporation had been canceled by the Paraná Court of Justice (TJ-PR). Microsoft appealed to the STJ, claiming that the defendant's illicit use of the software for the purpose of obtaining an economic gain, advantage or profit violated the copyright. He also argued that if the end user is exempt from punishment, no one else will purchase original programs. “It is necessary to apply an indemnity to prevent this type of conduct”, agrees digital law expert Alice Andrade Frerichs, partner at Patricia Peck Pinheiro Advogados.

According to information from the STJ, article 103 of the referred law determines that “whoever publishes a literary, artistic or scientific work without the authorization of the holder will lose to them the copies that are seized and will pay him the price of those he has sold”. It also provides that, if the number of copies that constitute the fraudulent edition is not known, the offender will pay the amount of three thousand copies. In the case in question, it was possible to ascertain the exact number of pirated copies.

In his vote, the rapporteur for the matter, Minister Fernando Gonçalves, pointed out that the Court has already been applying the criteria provided for in Law no. 9.609 for the quantification of material damage resulting from the use of unlicensed computer programs.

He also stressed that the fact that the company purchased licensed programs after the sentence was passed did not exempt it from paying the indemnity. For him, such a procedure means that she is now authorized to use the original software, but it is not enough to dismiss the condemnation of previous use of programs without proper authorization. “A decision from the 60s, by then Minister Victor Nunes Leal, already said that the result of a prohibited act should not be the same as that of a permitted act. If the punishment is just the value of software, it becomes an advantage. The individual will always know that, if supervised, the process will take ten years and he will already know how much he will indemnify in the end ”, comments lawyer Lyrio.

Accompanying the rapporteur vote, the Fourth Panel accepted the appeal to order the company from Paraná to pay the due indemnity.

According to lawyer Alice Andrade, Law 9.610 / 98 (of Copyright), allows compensation of up to 3 thousand times the value of the software. “This case was judged by the STJ until it had such a large indemnity. It could even be bigger, but it undoubtedly serves as a precedent for aligning inferior decisions ”, signals the expert.

According to Alexandre Lyrio, the company can still appeal against the decision to the Supreme Federal Court with an extraordinary appeal if it finds divergences, but the possibility of gain risks being small.

Previous

It is not the first time that Microsoft has won shares of this nature. For 11 years, the North American has had an arm wrestling with the company Sergen - Serviços Gerais de Engenharia to prove that the Brazilian company uses irregular software. Only with the Fourth Panel of the STJ, the discussion has been going on since last year. With successive requests for views, the action was interrupted and has no date to return to the agenda. If convicted, Sergen can shell out numbers that reach the million. The Court discusses whether the regularity of the use of a computer program can only be proved by showing the license agreement or invoice. A request for a view interrupted the trial in May this year.

In October 2007, the STJ guaranteed Microsoft the indemnity for material damages in the amount of R $ 12 thousand in a lawsuit against two companies from Rio Grande do Sul, accused of piracy.

Purchasing pirated software is a crime. But an unprecedented decision by the STJ in favor of Microsoft will cause companies adhering to this practice to pay at least 10 times more.