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Rob has created some illegal copies (violating the copyright) and is (illegally) selling them.

Bob likes the content, and, unable to find any legal copies of the same content, buys from Rob.

I get it that the contract is null and void.

However, Bob, knowing all the above, still completes the transaction and enjoys the content. Does he commit any offense that can be punished?

Jurisdiction: anywhere you can answer about.

Greendrake
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    Trademarks and copyrights are unaffected by availability. "Buying a single counterfeit product for individual use is not illegal in the US." So, buying a bootleg from the strange man on the corner isn't illegal, but if you buy an extra one for your friend, even if you don't sell it to them, now you're 'distributing'. Never have more than one of the same DVD, that would constitute intent. – Mazura Nov 19 '22 at 21:29

4 Answers4

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Bob is not committing any standalone copyright infringement unless he needs to make a further copy of the material in order to receive it (such as a download).

However, Rob is committing an offence punishable by indictment by making for sale an infringing copy (s. 42(1) of the Copyright Act.

If Bob, knowing that Rob is selling infringing copies, buys one of them, then Bob commits the offence of possessing a thing while knowing the thing was derived from the commission of an offence punishable by indictment (Criminal Code, s. 354).

(Credit to jcaron, who noted this and provided a similar answer for France.)

Jen
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    Is this yet another example of a law lagging behind technology? If the seller creates a CD and physically sends it to a buyer, the buyer is in no legal trouble, but would be if the same thing happened online without a physical disk? – vsz Nov 21 '22 at 05:27
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    Is downloading really considered as copying something? This seems strange to me. – Ivo Nov 21 '22 at 09:30
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    @Ivo : this can then get even more complicated... imagine you do get the rights to have only one copy, but your storage medium internally creates multiple copies for load balancing / redundancy reasons. For me it seems that legislators aren't really knowledgeable about such things. – vsz Nov 21 '22 at 09:42
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    @vsz IIRC people have been prosecuted based on this theory before. There was a lot of buzz about it when Internet piracy was newer. The theory also suggests you're not allowed to open a file without a license. Media conglomerates love this theory. – user253751 Nov 21 '22 at 10:58
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    Wouldn't it be "Possession of property obtained by crime (s. 354)"? – jcaron Nov 21 '22 at 11:58
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    What makes it even worse is that if the material is embedded directly in the HTML (or similar), your browser might make a copy without you asking it to. – Ben Hocking Nov 21 '22 at 20:45
  • @BenHocking Most crimes require intent. While someone stealing a bike and hiding it in your attic might be 'possession of stolen property', if you didn't know it was there. You usually have to 'know or have reasonable cause to believe that the property had been stolen.' – Jason Goemaat Nov 22 '22 at 04:51
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    @Ivo Yes, it's weird. Look up 'MAI Systems Corp. v. Peak Computer Inc.'. Even if you 'purchase' a program (not license), loading it into computer memory to make use of it can be considered 'making a copy'. At the time the case was about Peak serviced systems sold by MAI and may prevailed claiming that loading the program when doing the repairs was copyright infringement.. They wanted the service contracts themselves. The law has been changed for people doing computer repairs... – Jason Goemaat Nov 22 '22 at 04:57
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In the United States, Bob has probably not even committed copyright infringement. However, if Bob, knowing that the copy (or copies) were infringing, distributes them (or it) to others, or makes additional copies, (or does other acts of infringement) then Bob has committed infringement. But this is usually only grounds for a civil suit, which could result in civil damages. It is not normally treated as a crime, even when it technically could be.

Mister Verleg
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David Siegel
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    A copyright infringer may be committing a separate crime of counterfeiting if the copies are made to look like name-brand merchandise. I knew a lawyer in NYC who made a good living defending low-level sellers of bootleg DVDs back in the day. Penalties for the actual counterfeiters potentially included multi-year prison sentences, so he got most of his clients off with a small fine in exchange for fingering the supplier. – MTA Nov 19 '22 at 23:42
  • It's probably good to mention the doctrine of 'fair use' which I think is pretty broadly applied as a defense. I think it's pretty applicable in web scenarios such as someone downloading a movie that was posted on twitter. If you redistribute such material (e.g.: via torrents) the legal exposure is greatly magnified, to my understanding. – JimmyJames Nov 21 '22 at 21:26
  • @JimmyJames Fair use is a specifically US doctrine, it does not apply anywhere else (except perhaps Israel). It can apply in cases that would otherwise be copyright infringement. It is by no means limited to web issues. But since in the above case Bob, as Bob has not committed infringement at all, the issue of fair use will not apply. In the UK "fair dealing" plays a somewhat similar role. – David Siegel Nov 21 '22 at 21:34
  • @DavidSiegel Pretty sure this the comment section for the answer tagged 'united-states'. Am I missing something? – JimmyJames Nov 21 '22 at 21:55
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    @JimmyJames The answer is indeed tagged US, the question is not. Many people, particularly those from the US, wrongly assume that fair use applies everywhere. Therefor I often emphasize the contrary when mentioning it. – David Siegel Nov 21 '22 at 21:57
  • @DavidSiegel OK, fair enough but that's the context here. So, in the US, I think the question a lot of people have is whether they could be liable for buying or acquiring 'misappropriated IP' for lack of a better term. I think the answer is either definitively 'no' or 'in practice: no'. I'd be curious if you (or anyone else) knows which it is. – JimmyJames Nov 21 '22 at 21:59
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    The answer is "in mosyt cases no as a mattr of law". Buying or otherwise obtaining an unauthorized copy is not infringement. Persuading an infringer to make such a copy can be. – David Siegel Nov 21 '22 at 22:03
  • @DavidSiegel Also, I didn't say it was only applicable to the web but I'm pretty sure that the amount of misappropriated IP on the web is, statistically speaking, the only relevant channel in 2022. Maybe there are dudes still selling DVDs on the street in NYC but does it matter at this point? – JimmyJames Nov 21 '22 at 22:05
  • It seems to me that OP is specifically asking for not the case of this answer - i.e. buying illegal copies for his own enjoyment. This case should at least be mentioned to complete the answer... – AnoE Nov 22 '22 at 15:17
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In France, this would probably qualify as "recel de contrefaçon" (possession of goods obtained by crime), per Article 321-1 of the Penal Code.

Note that this applies only if Bob knows it is an illegal copy.

The fact that it is not available does not make it legal, which is quite obvious when you consider that many works of art for instance are unique pieces, so if the current owner is not selling, it is not available, but making a copy would still be illegal, and owning a fraudulent copy is illegal as well.

jcaron
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    It is not legal in France, the U.S. and many other jurisdictions. But, it is worth observing that some countries expressly exempt works which have not been translated into their national language within a reasonable time from copyright infringement, although it is a minority rule globally. Some countries likewise create a right similar to the right to cover musical works found in U.S. law to make copies of orphan works if a statutory fee is paid into an orphan works fund to which later located owners of orphan works can receive compensation in lieu of infringement damages. – ohwilleke Nov 21 '22 at 20:44
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"Receptação de Mercadoria Roubada" LIT: "Receipt of Stolen Merchandise" is a felony. Despite the common term, the goods only need to be the product of a crime. They don't actually need to be stolen.

Article 180 of the Brazilian penal code states:

Art. 180 - Acquire, receive, transport, carry, or hide, for the benefit of themselves or others, a thing that is known to be product of a crime, or to influence a third party to, in good faith, acquire, receive, or hide the article:

Penalty: One to Four years of imprisonment plus fine.

Art. 180 - Adquirir, receber, transportar, conduzir ou ocultar, em proveito próprio ou alheio, coisa que sabe ser produto de crime, ou influir para que terceiro, de boa-fé, a adquira, receba ou oculte: (Redação dada pela Lei nº 9.426, de 1996)

Pena - reclusão, de um a quatro anos, e multa.

Bob doesn't need to pay for the for the illegal copies of intellectual property to be guilty. The mere possession, transport, or the act of receiving it already constitutes a crime.

Crimes against intellectual property are codified in article 184, in the same link above. Rob, if found guilty, can face between two and four years of imprisonment plus fines.

Mindwin Remember Monica
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  • Does the definition of "produto de crime" include illegal downloads? The law seems to be from 1996, and Napster was in 1999. Now it's 2022 and illegal downloads still exist, and it's probably harder to claim you didn't know than it was in 1999. – Brandin Nov 24 '22 at 14:51
  • @Brandin article 184 states that making any copy of intellectual property, mostly audiovisual media, is a crime. Paragraph 1 aggravates if it is done with "the intent to profit, direct or indirect". Unlicensed copies for personal use usually aren't persecuted. Unless one is hosting some BitTorrent server, or something in a larger scale. – Mindwin Remember Monica Nov 24 '22 at 15:13