The use of unlicensed software is an offense sanctioned by imprisonment and judicial fines under Turkish law. Individuals who install, reproduce, distribute, or retain in their commercial enterprises for commercial purposes a computer program protected under the Law No. 5846 on Intellectual and Artistic Works (FSEK) without the authorization of the rightholder incur both criminal and civil liability. In the systematic framework of the FSEK, computer programs are deemed to have the status of scientific and literary works pursuant to Article 2 of the Law, and the author’s economic rights enjoy absolute protection.

Software developers or distributors transfer their rights over the work or grant rights of use through license agreements. Exceeding the contractual scope, executing software without a valid license key, or utilizing cracked programs legally constitutes direct copyright infringement. This infringement does not merely concern personal computers; it directly implicates companies, executives, and technical personnel who utilize such programs for commercial gain.

What criminal sanctions apply to the use of unlicensed software?

Perpetrators who use, reproduce, or distribute unlicensed software are sentenced to imprisonment from one to five years or to a judicial fine pursuant to Article 71/1 of the FSEK. As the legislature deems the protection of intellectual labor vital to public order, it aims to deter acts of unauthorized reproduction and distribution through criminal sanctions. For this offense, the court may sentence the offender to imprisonment or a judicial fine depending on the specific characteristics of the case, or in certain instances, may consider imposing both sanctions concurrently.

Criminal sanctions are not limited solely to imprisonment or fines. Pursuant to Article 75 of the Law and the relevant provisions of criminal procedure, computer cases, hard drives, and other storage media containing the infringing software may be seized. Upon conviction establishing the offense at the conclusion of the trial, the confiscation (transfer of title to the public) or destruction of these devices and pirated software comes into question.

Initiating criminal proceedings is contingent upon a complaint by the rightholder. Pursuant to Article 75 of Law No. 5846, the author or authorized representative entitled to file a complaint must apply to the Chief Public Prosecutor’s Office within 6 months from the date they become aware of the act and the perpetrator. This period is of a preclusive nature; if a complaint is not lodged within this statutory period, a criminal investigation cannot be conducted.

What damages do enterprises using unlicensed software face?

Enterprises using unlicensed software may be held liable under Article 68 of the FSEK to pay the rightholder compensation up to three times the standard licensing fee. This statutory remedy aims to redress the damage suffered by the author and to penalize unauthorized use in a deterrent manner. The author retains the right to demand up to three times the consideration that could have been claimed had a contract been concluded, or three times the prevailing market license fee.

In addition to claims for compensation, holders of economic rights may also pursue the following legal remedies:

  • Action for the elimination of infringement (cessation of infringement): Demands the complete deletion of pirated software from systems to prevent the continuation of the unlawful use.
  • Action for the prevention of infringement (injunction): Instituted to prevent infringements that have not yet occurred but are imminent.
  • Action for pecuniary and non-pecuniary damages: Claims the author’s loss of commercial reputation, direct commercial losses, and other damages pursuant to the general provisions of the Law of Obligations and the FSEK.

Because the market rates, court fees, litigation expenses, and expert fees to be determined in actions for damages fluctuate according to the economic conditions prevailing on the date of the lawsuit, they must be assessed on the basis of current statutory tariffs.

How are search and seizure proceedings conducted at enterprises?

Upon a complaint by the software rightholders, simultaneous inspections are executed at business premises pursuant to a search and seizure warrant obtained from the Criminal Judgeship of Peace. Based on the evidence submitted by the complainant, the court authorizes law enforcement authorities and an IT expert witness to conduct a search to determine copyright infringement. Law enforcement officers and specialized expert witnesses enter the company’s premises and scan all operational or non-operational computers using specialized software.

The inspection process proceeds through the following steps:

  1. Presentation of the search warrant: The court order is served upon the company representative and the scope of the search is disclosed.
  2. System scanning: The expert witness examines the license keys, invoices, and installation dates of the software installed on the computers.
  3. Forensic imaging and seizure: Forensic copies (images) of devices for which original license certificates cannot be produced are acquired, or the hardware itself is seized when deemed necessary.
  4. Execution of the search protocol: The identified unlicensed programs, serial numbers, and user credentials are recorded in an official protocol and executed under signature by the parties.

Every software program for which a valid invoice or license certificate cannot be produced during the raid is recorded in the protocol as “unlicensed.” The subsequent acquisition of a license or attempts to produce retroactive invoices do not extinguish the perfected criminal offense.

A concrete dispute scenario

An architecture and engineering firm, seeking to reduce costs, installed pirated versions of high-cost drafting and modeling software downloaded from the internet onto its office computers for use in its projects. These programs were actively used across twelve office computers for two years. The international corporation that developed the software detected the IP address and the unauthorized installation through automated telemetry data transmitted by the copies connecting to the internet.

Counsel for the rightholder company applied to the Chief Public Prosecutor’s Office requesting the preservation of evidence and a search warrant. During the raid conducted at the office in the presence of law enforcement and an expert witness, unlicensed professional drafting software was identified across all twelve computers. Following the expert report, criminal proceedings were instituted under Article 71/1 of the FSEK against both the general manager of the company and the partner responsible for IT infrastructure.

Concurrently, in an action initiated before the civil court, compensation in the amount of three times the market license fee of the software at that date was claimed. Although company management argued that employees had installed the programs on their own initiative without the management’s knowledge, this defense was dismissed pursuant to the established precedents of the Court of Cassation regarding managers who breach their duty of supervision within a commercial enterprise.

Are company managers directly liable for the use of unlicensed software?

Since legal entities do not bear criminal liability, criminal sanctions are imposed upon directors authorized to represent and bind the company and upon IT personnel where unlicensed software is used within the company. Pursuant to the principle of individual criminal responsibility under the Turkish Penal Code, natural persons who act on behalf of the company or who undertake supervisory and monitoring duties within the organization are deemed perpetrators. Arguments by executives claiming “I was unaware” hold no legal validity against the duty of a prudent merchant to supervise their commercial enterprise.

For instance, in enterprises operating in centers where the tourism, hospitality, and construction sectors are concentrated, such as Antalya, monitoring the licenses of accounting, reservation, or design software is often neglected. Failing to establish through internal regulations which personnel are authorized to install software on specific computers directly renders senior management legally at fault.

Regarding civil liability for damages, the company’s legal entity and the liable managers may be held jointly and severally liable. The author possesses the right to recover the treble damages from both the assets of the company and from the culpable executives.

Common errors in unlicensed software disputes

Enterprises and individual users make critical errors due to lack of information during license audits or investigation proceedings. The most common errors include:

  • Relying on the defense of personal use: Asserting that a program found on a company computer was installed by personnel for personal matters does not exonerate the enterprise or the executive from liability.
  • Purchasing licenses during the raid: Purchasing a license immediately after the execution of the search and identification protocol does not preclude the commission of the offense; it may only be considered as grounds for active repentance or discretionary mitigation in sentencing.
  • Failing to distinguish between counterfeit and legitimately invoiced licenses: Licenses containing only a single product key acquired at nominal prices from second-hand platforms or unauthorized intermediaries are generally not recognized as legally valid. An invoice alone is insufficient; an authorization certificate approved by the developer is also required.
  • Rejecting mediation or settlement proceedings: Offenses under Article 71 of the FSEK are eligible for penal mediation; outright refusal to negotiate with the rightholder elevates the risk of substantial damages and custodial sentences.

A procedural error in intellectual property litigation can irreversibly prejudice the trajectory of a case. In conducting negotiations with rightholders or managing investigation files, legal practitioners specializing in intellectual property, such as Atty. Med. Billur Güler Aslım, provide legal counsel to resolve disputes before they escalate.

Competent courts and procedural rules in disputes

The courts with subject-matter jurisdiction in disputes arising from the use of unlicensed software are the specialized Civil Courts for Intellectual and Industrial Property Rights and Criminal Courts for Intellectual and Industrial Property Rights. In provinces or districts where these specialized courts have not been established, jurisdiction lies with the general Civil Courts of First Instance or Criminal Courts of First Instance.

Venue is, as a rule, determined by the place where the offense was committed, the center where the tort occurred, or the domicile of the defendant. For example, depending on the jurisdiction where the infringement took place, criminal proceedings may be instituted before the Antalya Criminal Court for Intellectual and Industrial Property Rights, whereas the Civil Court for Intellectual and Industrial Property Rights within the same judicial district has jurisdiction over claims for damages.

In civil actions, the court may issue preliminary injunctions upon the application of the rightholder, with or without security. Under these injunctive measures, severe commercial consequences may arise, such as ordering the cessation of software use, severing server connections, or placing freezes on company bank accounts.

To avoid severe criminal and financial sanctions arising from the use of unlicensed software, enterprises must conduct periodic internal audits and maintain an inventory of all deployed software. Archiving original license documents, manufacturer invoices, and end-user license agreements systematically in digital and physical formats mitigates criminal liability during inspections. When faced with infringement allegations, reviewing search protocols, timely filing objections to technical expert reports, and evaluating settlement avenues with rightholders constitute fundamental principles for managing the process.