Search and seizure conducted on suspicion of using unlicensed software at the workplace is a judicial measure executed by court order upon a complaint by the right holder. During this process, digital materials are examined pursuant to the provisions of the Law on Intellectual and Artistic Works No. 5846 (FSEK) and the Criminal Procedure Code No. 5271 (CMK). If unlawful software is identified, criminal sanctions including imprisonment or judicial fines may be imposed on business executives.

Which offenses does the use of unlicensed software at the workplace constitute?

The use of unlicensed software at the workplace constitutes the offense of infringement of moral, economic, or related rights under Article 71 of the FSEK due to the act of reproducing a computer program or possessing it for commercial purposes without the consent of the right holder. For this offense to occur, it is sufficient that the software is installed to generate commercial gain or is actively operated in business operations.

Pursuant to Article 71 of the FSEK, persons who reproduce, distribute, or commercially exploit a work without the consent of the right holder shall be sentenced to imprisonment from 1 to 5 years or a judicial fine. The primary basis of the offense here is the absence of a license agreement (the legal document determining the terms and limits of software use) for the software in question or the exceeding of the scope of an existing license.

Criminal liability is personal, and it is legally impermissible to directly sentence legal entities to imprisonment. Therefore, the investigation targets executives responsible for IT systems within the enterprise, company directors, or personnel who committed the infringement. As for the enterprise, security measures and severe damages sanctions are applied.

How is a search and seizure order obtained for a workplace?

A search and seizure order for a workplace is issued by the competent criminal judgeship of peace upon the complaint of the software right holder or their attorney and the subsequent request of the chief public prosecutor’s office. Under Article 116 of the Criminal Procedure Code, there must be reasonable suspicion (a degree of suspicion based on concrete facts) that evidence of the crime can be obtained at the premises.

The process leading to a judicial search order proceeds through specific stages:

  1. The right holder company identifying evidence through technical tracking or a tip-off and filing a criminal complaint with the chief public prosecutor’s office.
  2. The public prosecutor evaluating the evidence in the file and requesting a judicial search and seizure order from the criminal judgeship of peace.
  3. The criminal judge of peace issuing a reasoned decision ordering the search of the address and the examination of digital data.
  4. Law enforcement officers and an expert witness proceeding to the designated workplace address and initiating judicial proceedings.

In cases where delay is prejudicial, a search may also be conducted upon the written order of the prosecutor; however, this order must be submitted for judicial approval within 24 hours. For workplaces within Antalya boundaries, the order is obtained from the competent duty criminal judgeship of peace.

How are search and copying operations conducted on computers?

The search of computers and digital data carriers is executed pursuant to Article 134 of the CMK by decrypting or backing up data in the system in the presence of law enforcement officers and expert witnesses, subject to a specific court order. To prevent the disruption of commercial operations at the workplace, law enforcement primarily aims to make forensic copies of the computers and leave the original hardware with the enterprise.

During the search, the method of forensic imaging (extracting an exact bit-by-bit copy of the digital material) is applied. Before initiating the copying process, the expert witness generates a Hash value (digital fingerprint) confirming the integrity of the data. This technical value serves as definitive proof that the obtained digital evidence has not been subsequently altered or tampered with.

Where on-site backup is technically impracticable, computer cases or hard drives may be seized. The seizure is recorded in an official protocol, the devices are sealed, and the forensic imaging procedure is conducted in the judicial evidence laboratory.

What are the rights of company executives and employees during a search?

During a search, company executives and employees have the right to request a certified copy of the search order, personally observe the inspection process, and record any unlawful actions in the protocol. The company representative should exercise the right to explicitly record in the protocol all technical procedures performed, computers inspected, and objections raised, and to obtain a wet-ink signed copy of this protocol.

The legal safeguards available to the enterprise during the procedure are as follows:

  • Presence of defense counsel: The presence of an attorney during the search cannot be prevented; however, awaiting the attorney does not suspend the proceedings.
  • Protection of personal data: Private correspondence of employees and commercial trade secrets unrelated to the offense fall outside the scope of the search.
  • Requesting a backup: If computers are seized, a backup copy of commercial files in the system is provided to the enterprise executive.
  • Objection to the decision: An objection against unlawful search and seizure orders may be filed with the competent high criminal court within 7 days.

Acts not recorded in the protocol or executed without consent may cause the collected digital materials to become inadmissible evidence in criminal proceedings.

Risks facing enterprises in unlicensed software litigation include compensation actions brought under Article 68 of the FSEK to indemnify damages incurred by the right holder, as well as imprisonment and judicial fines directed at executives. The right holder may create a severe debt burden on the enterprise by exercising the right to claim compensation up to three times the amount that could have been demanded had a contract been concluded.

The legal and financial consequences that enterprises may encounter are as follows:

  • Risk of threefold compensation: The right holder company may file a copyright compensation lawsuit amounting to up to three times the license fee.
  • Criminal conviction: Company directors or relevant personnel established to have committed the offense are sentenced to imprisonment or judicial fines.
  • Litigation costs: Expert witness fees, enforcement expenses, and opposing counsel’s statutory attorney fees are charged to the losing enterprise; these amounts are determined pursuant to official tariffs.
  • Confiscation of devices: A court may order the confiscation (transfer of ownership to the state) of information systems hosting unlicensed software.

In proceedings heard before the Antalya Criminal Court of Intellectual and Industrial Property Rights, these sanctions may be applied individually or concurrently in light of concrete evidence.

What are common mistakes made in unlicensed software audits?

Common mistakes in unlicensed software audits stem from personnel connecting personal devices to the corporate network, transferring OEM licenses across different computers, and failing to systematically archive invoices and license certificates. Failure by corporate officers to conduct regular internal audits subjects the enterprise to criminal and financial liabilities due to pirated software downloaded independently by employees.

The primary misconceptions enterprises encounter in practice include:

  • Considering an invoice sufficient on its own: A purchase invoice alone does not prove the right of use; the software’s active license key and user count must be validated by agreement.
  • Exceeding the scope of license terms: Utilizing software procured for personal or academic purposes within a commercial enterprise constitutes unlicensed use.
  • Signing protocols without verification: Inaccurate recording of detected software titles and versions in the search protocol results in forfeiture of rights.
  • Submitting statements without legal counsel: Uninformed admissions made during the statement-taking phase can directly transfer criminal liability onto the managing director.

Maintaining regular software inventories and establishing network security policies is the most effective way to prevent damages arising from unannounced audits.

Hypothetical example

The following case is fictional. A three-dimensional design program unlawfully installed on an employee’s personal computer at an architecture firm transmits a signal to the right holder company’s servers over the network. The right holder firm identifies the IP address and files a criminal complaint with the chief public prosecutor’s office. Law enforcement and an expert witness arriving at the premises pursuant to a court order identify that unlicensed software is utilized on five computers within the local network and extract digital images. In this case, criminal proceedings under the FSEK may be instituted against the enterprise manager, and an action for damages up to three times the software value may be initiated by the right holder. Even if the business asserts the employee’s individual fault, it cannot entirely escape civil liability.

Frequently asked questions

Do conciliation provisions apply to the offense of unlicensed software use?

Yes, infringement offenses under Article 71 of the FSEK fall within the scope of conciliation under Article 253 of the CMK. During the investigation phase, the prosecutor’s office refers the file to the conciliation bureau; if the suspect enterprise executive and the right holder reach an agreement, no public prosecution is initiated and the criminal investigation is dismissed.

Is the right holder obligated to serve a warning notice on the enterprise prior to a software audit?

No, the right holder has no statutory obligation to serve a formal written notice on the enterprise prior to requesting judicial search and seizure. The right holder may demand an unannounced raid-style audit either by filing a criminal complaint directly with the chief public prosecutor’s office or by petitioning the court for the determination of evidence.

What is the statute of limitations for unlicensed software use?

Eight years; pursuant to the provisions of the Turkish Penal Code, the primary statute of limitations applicable to the offense stipulated in Article 71 of the FSEK is 8 years. This period begins to run from the date the infringing software is used.

Can the physical removal of workplace computers be prevented?

Yes, by performing on-site forensic imaging, the physical removal of computer towers to the police precinct can be avoided. The company executive holds the right to request that data be mirrored and hardware be left operational at the premises by supplying appropriate technical equipment.

Does the criminal trial terminate if the complaint regarding unlicensed software is withdrawn?

Yes, because infringements under Article 71 of the FSEK are offenses prosecuted upon complaint, withdrawal of the complaint by the right holder abates the criminal action. At any stage of the proceedings, the parties agreeing on the license fee and revoking the complaint concludes the case entirely.

References

  • Law on Intellectual and Artistic Works No. 5846
  • Criminal Procedure Code No. 5271
  • Turkish Penal Code No. 5237

This article is for general informational purposes; outcomes may vary based on the specifics of concrete cases.

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