License Violation in Software Obtained from Abroad and Applicable Legal Issues

Software sourced from abroad has become an integral part of the daily workflow not only for large technology companies but also for small and medium-sized enterprises. Cloud-based services, foreign-made ERP systems, international design and engineering software, SaaS platforms, code libraries, and online subscription models allow users in Türkiye to often enter into contracts with foreign manufacturers with just a few clicks. However, when a dispute arises, the real challenge begins: Which country's law will apply to this relationship? Turkish law, the foreign law chosen in the license agreement, or the law of the country where the infringement occurred? This question is particularly crucial in cases of license infringement, unauthorized use, exceeding user limits, importing copies made abroad into Türkiye, and compensation claims.

In Turkish law, computer programs are explicitly protected as works. The Turkish Copyright Law defines a "computer program" as a sequence of commands and related preparatory work designed to enable a computer system to perform a specific operation or task. The same law considers computer programs to be works of science and literature; furthermore, the installation, display, execution, transmission, and storage of the program are also included within the scope of the right of reproduction. Therefore, a dispute concerning software licensed or obtained from abroad can create a multi-layered legal problem, not just a "breach of contract," but encompassing copyright, import, distribution, use, and compensation.

The most critical distinction in this regard is that disputes arising from software license agreements and disputes arising from intellectual property infringement are not always subject to the same law. In other words, while the license agreement may stipulate the application of, for example, California law or English law, the law applicable to a copyright infringement claim in Türkiye may still be Turkish law. The Turkish Code of International Private Law and Procedural Law establishes precisely this distinction. Therefore, in disputes involving foreign software, the first thing to do is not to look for a single "applicable law," but to determine which claim falls into which legal category.

Why is the problem not just a matter of "foreign licensing agreements"?

The use of software acquired from abroad in Türkiye often creates three separate levels. The first level is the establishment and performance of the license agreement. The second level is the claim of intellectual property infringement arising from the actual use, reproduction, distribution, or cross-border transfer of the software. The third level is the accompanying discussions on unfair competition, consumer protection, jurisdiction agreements, enforcement, and public order. The systematic structure of the Turkish Private International Law Act (MÖHUK) itself separates these layers: it establishes separate rules for contracts, intellectual property rights, and unfair competition.

Therefore, regarding software purchased from a foreign producer, it is incorrect to say, "foreign law was chosen in the contract, therefore that law applies in all matters." Similarly, it is incomplete to say, "the software was used in Türkiye, therefore Turkish law applies in all cases." The correct approach is to make a distinction based on the specific claim. The debt relationship arising from the license agreement may be subject to one law; claims arising from copyright infringement may be subject to another; and claims arising from unfair competition may be subject to yet another law. In practice, most errors arise from attempting to resolve the entire case under a single legal regime without making this distinction.

Why is bringing foreign software to Türkiye particularly important?

Article 23 of the Copyright Law regulates the right of distribution and establishes a very important rule regarding foreign-origin software. According to the article, the right to bring into Türkiye and utilize copies reproduced abroad with the permission of the author exclusively belongs to the author; furthermore, copies reproduced abroad cannot be imported without the permission of the author or the holder of the distribution rights. The same article adopts a model based on the first sale or distribution within Turkey in terms of exhaustion effect. This means that the fact that software has been reproduced abroad with the permission of the rights holder does not automatically make it freely importable and distributable in Türkiye.

This provision is particularly important when corporate companies attempt to transfer licenses purchased abroad to their subsidiaries, branches, or distributors in Türkiye. A legally obtained copy or license abroad must be examined separately in terms of distribution and import rights in Türkiye. Therefore, the logic of "purchased in the US, it can be used here" is not always reliable. The software's licensing model, regional terms of use, import authorization, user scope, and the chain of authority for Türkiye must be evaluated separately. This aspect of Article 23 of the Copyright Law shows why license infringement in foreign software can involve not only EULA disputes but also issues of import and distribution.

Which law applies to a licensing agreement?

In software license agreements involving a foreign element, the first provision to be examined is Article 28 of the Turkish Private International Law Act. This article explicitly stipulates that contracts relating to intellectual property rights are subject to the law chosen by the parties. That is, the parties may agree that, for example, English law, New York law, or German law will apply to the license agreement. If the parties do not choose a law, the contractual relationship is governed by the law of the place of business of the party transferring the intellectual property right or its use at the time the contract is concluded; if there is no place of business, then the law of their habitual residence applies. However, if, according to all the circumstances, another law is more closely related to the contract, then the contract shall be governed by that law.

This provision is more specific than the general contract rule in Article 24 of the Private International Law Act (MÖHUK) regarding software license agreements. Article 24 of the MÖHUK stipulates that the parties may make an explicit or implicitly understandable choice of law, and if no choice is made, the law most closely related to the contract shall apply. However, since software license agreements relate to the transfer of intellectual property rights or the right to use, Article 28 should generally be considered first. Nevertheless, in hybrid contracts, such as those containing license + maintenance + training + integration + support, it may be necessary to consider Articles 24 and 28 together. In particular, what constitutes the characteristic performance and which service is the center of gravity of the contract are sometimes discussed separately.

The most important practical implication here is that if a license agreement signed with a foreign producer includes a choice of law, the formation and interpretation of the agreement, the scope of the license, payment obligations, maintenance and support conditions, grounds for termination, and breach of contract provisions are, as a rule, evaluated according to that chosen law. However, this does not automatically mean that a copyright infringement claim is also subject to the same law. This is the point where the dispute is most frequently misunderstood.

Which law applies in cases of copyright infringement and piracy?

Article 23 of the Turkish Private International Law Act explicitly answers this question: Intellectual property rights are subject to the law of the country under which protection is sought. This is the "law of the country where protection is sought" or lex protectionis approach in international copyright law. The same article also stipulates that the parties may agree that the law of the court after the infringement shall apply to claims arising from the infringement of intellectual property rights. Therefore, even if foreign law is chosen in the license agreement, if protection for a software usage infringement alleged to have occurred in Türkiye is sought under Turkish law, the infringement claims will, as a rule, be subject to Turkish law.

This rule creates a crucial distinction in foreign software files. For example, a US-based software provider might have chosen Delaware law in an EULA. However, if protection is sought in Türkiye on the grounds that the software has been illegally reproduced in Türkiye, activated with a forged key, the user limit has been exceeded in Türkiye, or that copies reproduced abroad have been brought into Türkiye without permission, Turkish law may apply in terms of copyright infringement. In this case, the possibility of claiming up to three times the amount incurred under Article 68 of the Turkish Copyright Law, the possibility of compensation under Article 70, and the risk of penalties under Article 71 also come into play. The separation of the law applicable to the contract from the law applicable to the infringement becomes concrete at this point.

Therefore, a major misconception among companies holding foreign software licenses is believing that the choice of law clause in the EULA protects them from all types of copyright claims. However, contract law and protection law do not always proceed in the same direction. If protection is sought in Türkiye, Turkish law may apply to infringement claims in Türkiye. This is of strategic importance for both companies and lawyers, because when preparing the defense, it must first be clarified whether the claim is contractual or a direct intellectual property infringement.

Are foreign licensing agreements and consumer contracts the same thing?

No. Obtaining software from a foreign manufacturer does not, in itself, make it a consumer contract. However, if the software is offered to a consumer for non-professional or non-commercial purposes, Article 26 of the Private International Law Act comes into play. According to this article, consumer contracts are subject to the law chosen by the parties, provided that the minimum protection afforded to the consumer under the mandatory provisions of the law of their habitual residence is preserved. If no choice of law has been made and the conditions listed in the article are met, the law of the consumer's habitual residence applies. Furthermore, consumer contracts also have special protection regarding form and certain jurisdictional rules.

This rule is important for Turkish end-users who purchase software from foreign app stores, international SaaS providers, or foreign digital platforms. Even if foreign law is written in the EULA, the mandatory minimum protection of the consumer under the law of their habitual residence in Türkiye cannot be completely eliminated. Moreover, according to Article 45 of the Private International Law Act, in disputes arising from consumer contracts, the Turkish courts of the consumer's place of residence or habitual domicile, or the courts of the counterparty's place of business, residence, or habitual domicile, may have jurisdiction, depending on the consumer's choice; similarly, in lawsuits filed against the consumer, the court of the consumer's habitual domicile in Türkiye has jurisdiction. Therefore, if there is a consumer aspect in foreign software contracts, the choice of law and the jurisdiction clause have more limited consequences.

Which law applies in terms of unfair competition and market impact?

The unlicensed use of foreign software sometimes affects not only the rights holder but also competitors. In particular, if software obtained from abroad but used without a license in Türkiye provides an unfair cost advantage to a business, claims of unfair competition may arise. According to Article 37 of the Turkish Private International Law Act, claims arising from unfair competition are subject to the law of the country whose market is directly affected by the unfair competition; if the interests of the injured party are exclusively related to their business, the law of the country where that business is located applies. Therefore, if it is claimed that the pirated use of foreign software affects the Turkish market, Turkish law may also come into play in terms of unfair competition.

This is particularly important in the areas of distribution, dealership, franchising, and public/private tenders. If a company uses foreign-made software in Türkiye without a license and provides services at a lower cost than its competitors, the issue may not only be a breach of the license agreement but also an unfair competition problem that directly affects the Turkish market. In this case, the applicable law will not be the foreign law chosen in the contract, but the law of the directly affected market, which is often Turkish law.

When do Turkish courts have jurisdiction, and when does the foreign court requirement apply?

According to Article 40 of the Turkish Private International Law Act, the international jurisdiction of Turkish courts is determined by the territorial jurisdiction rules of domestic law. That is, first, the nature of the dispute determines which domestic court has jurisdiction; the foreign element comes after that. However, Article 47 of the Turkish Private International Law Act states that in cases where exclusive jurisdiction does not exist, the parties may agree that disputes involving a foreign element and arising from debt relationships will be heard in a foreign court. This agreement is valid if it can be proven by written evidence. Nevertheless, if the foreign court declares itself incompetent, or if no objection to jurisdiction is raised in Turkish courts, the case may still be heard in a Turkish court.

This provision is very important in terms of forum selection clauses in foreign software license agreements, i.e., foreign court records. B2B license agreements may contain clauses such as "California courts shall have exclusive jurisdiction." In Turkish law, such clauses are generally meaningful if the conditions of Article 47 are met. However, these clauses are not absolute in all cases. In areas with special jurisdiction protection, such as consumer contracts, Article 45 comes into play, and this protection cannot be waived by agreement of the parties. Furthermore, a foreign court decision is not automatically enforced in Türkiye; a separate enforcement process is required.

Is obtaining a foreign court decision sufficient?

No. According to Article 50 of the Turkish Code of Private International Law, the enforcement in Türkiye of final judgments issued by foreign courts in civil cases depends on the issuance of an enforcement decision by a competent Turkish court. Article 54 of the Turkish Code of Private International Law also lists the conditions for enforcement: reciprocity, the judgment being in a matter not within the exclusive jurisdiction of Turkish courts, not being clearly contrary to public order, and not violating the fundamental procedural guarantees of the right to defense are among the main ones. Therefore, even if a foreign software provider has received a judgment in its own country, that judgment must also be brought before a Turkish court for enforcement in Türkiye.

This practically demonstrates that the selection of a foreign court in the EULA does not mean that the Turkish party has no means of defense in Türkiye. Especially if the aim is to enforce the foreign judgment in Türkiye, public order, proper notification, jurisdiction, and other conditions are re-examined during the enforcement phase. For foreign manufacturers, this is a crucial part of their contractual strategy; for Turkish users, it is a vital part of their defense strategy.

What does a Turkish judge do if foreign law is chosen?

According to Article 2 of the Turkish Code of Private International Law, the judge applies Turkish conflict of laws rules and the foreign law that is competent according to these rules ex officio. The judge may request the assistance of the parties in determining the content of the competent foreign law. However, if the relevant provisions of the foreign law cannot be determined despite all investigations, Turkish law shall apply. The same article also states that in cases where the parties are given the option to choose a law, unless the parties explicitly agree otherwise, the substantive law provisions of the chosen law shall apply. In other words, the application of foreign law is not a matter of "it will be considered if the party requests it"; the Turkish court takes it into account ex officio. However, the parties must make serious preparations in presenting the foreign law.

This has a very practical consequence in software licensing disputes. If, for example, German law is chosen in the contract, the relevant provisions of that law must be proven in a Turkish court through translations, expert opinions, foreign legislation, and, if necessary, examples of its application. Otherwise, the content of the foreign law cannot be determined, and Turkish law may be applied. Even though the choice of foreign law is stated in most standard EULAs, unexpected results can arise if the specific interpretation of that law is not adequately presented in the case file at the time of the dispute.

When do public order and directly enforced rules come into play?

According to Article 5 of the Turkish Private International Law Act, if a provision of the applicable foreign law to a specific event is clearly contrary to Turkish public order, that provision shall not be applied; Turkish law shall be applied where deemed necessary. Article 6 of the Turkish Private International Law Act states that in cases falling within the scope of directly applicable rules of Turkish law in terms of regulatory purpose and scope of application, the Turkish rule shall apply even if the applicable foreign law is applied. These provisions are particularly important in cases involving excessively liable clauses in foreign software contracts, provisions that completely render consumer protection ineffective, or regulations that touch upon mandatory areas of law in Türkiye.

Therefore, the understanding that "foreign law has been chosen in the EULA, and everything will be resolved according to it" is not absolute in the Turkish private international law system. If there is a clear violation of Turkish public order or matters falling within the scope of directly applicable rules, the boundaries of foreign law can be defined. Software licensing relationships, particularly in terms of data protection, consumer law, import, distribution, and certain intellectual property sanctions, may pass through these filters.

What should companies and software businesses do?

The first thing companies acquiring software from abroad should do is to read the license agreement not only in terms of price and number of users, but also in terms of choice of law, jurisdiction, regional use, import, sublicensing, group company use, and data transfer. Especially for foreign software to be used in Türkiye, the question of "which law governs" is not a minor clause following "who can use"; it is one of the main headings determining the fate of a dispute. If the contract includes a choice of law, the scope of this clause should be considered; otherwise, it should be understood that, according to Article 28 of the Private International Law Act, the licensor's place of business law may apply.

Secondly, a distinction must be made between contractual license breach and copyright infringement defenses. If the foreign provider claims "unlawful use," the choice of applicable law is crucial. However, if the claim is an infringement of copyright protection in Türkiye, Turkish law may apply due to Article 23 of the Private International Law Act. Responses to notices and litigation strategies prepared without this distinction are often incomplete. Especially in licensing audits conducted by Turkish companies with foreign producers, these two types of claims are often confused within the same correspondence.

Thirdly, the jurisdiction and enforcement aspects must be carefully examined in the face of a threat of litigation or arbitration from a foreign manufacturer. Foreign court judgments are not directly enforced in Türkiye; enforcement is required. Particular care should be taken regarding consumer relations or areas that may be subject to public order restrictions in Türkiye. In particular, hastily adopted forum and law clause provisions in international software contracts can lead to very costly litigation risks in the future.

Conclusion

The issue of license infringement and applicable law in software procured from abroad cannot be resolved with a single answer of "foreign law" or "Turkish law." The Turkish private international law system categorizes these cases according to the type of claim. For license agreements, Article 28 and, if necessary, Article 24 of the Private International Law Act (MÖHUK) apply; for copyright infringement, Article 23 of the MÖHUK applies, governing the law of the country where protection is sought; if there is an aspect of unfair competition, Article 37 is considered; for consumer contracts, Articles 26 and 45 provide special protection; and for the enforcement of foreign court judgments in Türkiye, enforcement is required in accordance with Articles 50 and 54.

Therefore, the most accurate approach is to first determine the nature of the dispute, and then which country's law applies to which claim. The choice of law in a foreign EULA is important, but it doesn't solve everything. Turkish law can strongly apply in cases of use, import, distribution, or copyright infringement occurring in Türkiye. For companies using foreign software, the biggest risk is viewing the license agreement as an addendum to a purchase; the most appropriate course of action is to evaluate the choice of law, jurisdiction, import, data, and usage limits from the outset from an international dispute perspective.

Frequently Asked Questions

If English law is chosen in a foreign software license agreement, does English law apply in all matters in Turkey?
No. The chosen law is generally important in terms of the obligations arising from the license agreement. However, in copyright infringement claims where protection is sought in Turkey, Turkish law may apply pursuant to Article 23 of the Private International Law Act.

Can legally acquired software from abroad be freely brought into Turkey?
Not always. Article 23 of the Copyright Law stipulates that the right to bring into Turkey and utilize copies reproduced abroad with the author's permission belongs exclusively to the author; unauthorized import is not possible.

Can a foreign court decision against a foreign producer be directly enforced in Turkey?
No. For a foreign court decision to be enforced in Turkey, an enforcement order is required within the framework of Articles 50 and 54 of the Private International Law Act.

If I, as a consumer, purchase software from a foreign app store, does my choice of foreign law completely bind me?
No. Article 26 of the Turkish Private International Law Act reserves the minimum protection that a consumer would have under the mandatory provisions of the law of their habitual residence. Furthermore, Article 45 of the Turkish Private International Law Act establishes jurisdiction rules in Turkish courts in favor of the consumer.

What happens if foreign law is chosen but its content cannot be determined in court?
According to Article 2 of the Private International Law Act, the judge applies foreign law ex officio; however, if its content cannot be determined despite all investigations, Turkish law applies.