Software License Violations: Criminal Case or Civil Case?

In software license infringements, is a criminal case or a civil lawsuit more effective? This comprehensive guide covers the criminal process under the Turkish Copyright Law (FSEK), triple damages, pecuniary damages, evidence gathering, provisional measures, and strategic lawsuit selection.

In software license infringements, the real issue is often not simply whether to file a criminal case or a civil lawsuit. In Turkish law, both civil and criminal proceedings can be considered simultaneously in cases of copyright infringement. Indeed, the General Directorate of Copyrights of the Ministry of Culture and Tourism explicitly states that either a civil or criminal case can be filed in cases of copyright infringement. Therefore, the correct question in software license infringements is not "which of the two paths is theoretically possible?", but rather "which path achieves the purpose more quickly and effectively in the specific case?".

This distinction is particularly important because software disputes do not proceed like a classic debt dispute. Software is considered a protected work under Turkish law. The Law No. 5846 on Intellectual and Artistic Works protects computer programs as works; the current consolidated text includes amendments made up to December 21, 2021. Therefore, using unlicensed software can be considered not only a breach of contract but also an infringement of copyright.

While a company or individual using a single-user license as a team, continuing to run expired software, converting an educational or trial license into a commercial venture, or bypassing the protection system with cracks or license-cracking tools may not be legally grouped under the same heading, they often lead to the same result: the rights holder can establish a multi-layered strategy involving both cessation of use, monetary fines, and penalties. Therefore, penalties and compensation should not be seen as competing issues, but rather as two separate and complementary approaches in most cases.

What does a criminal trial aim for?

At the heart of criminal prosecution lies sanction and deterrence. According to the official statement of the General Directorate of Copyright, processing, representing, reproducing, modifying, distributing, publicly transmitting, and publishing a work without the written permission of the rights holder; offering for sale, selling, renting, purchasing for commercial purposes, importing or exporting illegally reproduced works; possessing or storing them for purposes other than personal use are among the grounds for initiating criminal prosecution. The same statement also lists producing, offering for sale, or possessing for purposes other than personal use programs or technical equipment designed to disable additional programs created to prevent the illegal reproduction of a computer program. This makes the path to criminal prosecution stronger, especially in the case of cracked installations and license-breaking tools.

Criminal proceedings do not only give the rights holder the opportunity to say "I have filed a complaint"; they can also enable protective measures to be implemented through the prosecutor's office. According to the same statement from the Ministry, the author, related rights holder, financial rights holder, or authorized professional association can apply to the Chief Public Prosecutor's Office of the place where the infringement occurred or its consequences arose. Upon receiving the complaint, the public prosecutor takes the necessary steps for seizure of the infringing material in accordance with the provisions of the Code of Criminal Procedure; if deemed necessary, they may decide to suspend the activity limited to the reproduction of the works alleged to have been illegally reproduced. This decision must be submitted to a judge for approval within twenty-four hours.

Therefore, criminal proceedings or criminal complaints are particularly strong in the following cases: if the opposing party's use is clearly systematic, if a crack or license-breaking tool is involved, if the commercial purpose is evident, if the evidence needs to be technically preserved quickly, and if the rights holder's primary aim is not merely to receive money but also to create a strong deterrent. Criminal proceedings often exert significant pressure on the opposing party in a short time; however, the quality of the evidence, as well as the legal classification, is fundamental to this pressure.

What does a compensation lawsuit aim to achieve?

Compensation claims and related legal proceedings primarily aim at economic redress and the cessation of the infringement. The official Ministry statement explicitly lists three main categories of legal proceedings: claims for compensation under Article 68 of the Copyright Law, actions to prevent infringement, and compensation claims. The same statement indicates that both moral and material damages can be claimed, and that the profits obtained by the perpetrator through the unlawful act can also be demanded.

The most powerful tool here is the claim under Article 68 of the Copyright Law, known in practice as "triple compensation." As clearly stated on the Ministry's website, an unlicensed rights holder can demand up to three times the price they could have requested if a contract had been made, or the current market price. This provision is extremely important in software disputes because unlicensed use often occurs with high-value commercial software, resulting in a claim far exceeding the normal license fee. Companies most frequently fall into the trap of thinking, "We'll complete the missing license later, and the matter will be closed." However, past inappropriate use does not negate the basis for the triple compensation claim.

The second important aspect of a compensation lawsuit is its effect on stopping use. The Ministry's official statement also includes a separate lawsuit for the prevention of infringement. This lawsuit aims to prevent the continuation and recurrence of the infringement. In a software license infringement case, the rights holder may not only want monetary compensation; they may also demand the removal of the program, the cessation of unlicensed access, and that the infringement ceases. Especially in accounting, CAD, ERP, production planning, or design software, this demand can directly impact the company's daily operations.

Claims for damages focus more on economic consequences than criminal proceedings. If the rights holder's primary goal is to recover the cost of unlicensed use, claim profit transfer, stop the infringement, and secure their position with injunctive relief if necessary, a civil lawsuit is often a more direct approach. Especially when the evidence of a clear crime on the part of the other party is weak, but the evidence of a contractual and economic breach is strong, claims for damages may be a more practical and effective method.

So which one should be preferred?

There is no single-sentence answer to this question. The answer to whether to pursue criminal charges or civil lawsuits in software license infringements depends on the specific objective and evidentiary structure of the case. If the rights holder's priority is to quickly halt the other party's use, exert strong pressure, and invoke the risk of sanctions in the face of serious issues such as cracking, license breaking, and systematic commercial reproduction, then a criminal approach may be more effective. Conversely, if the primary goal is economic compensation, a claim for double the license fee, profit transfer, and the cessation of use through civil court proceedings, then a civil lawsuit becomes more central.

However, in practice, these two paths are not mutually exclusive in most cases. In fact, the most effective strategy is often a model where criminal complaints and civil lawsuits complement each other. The criminal process provides protection against prosecution pressure and digital evidence protection; the civil lawsuit, on the other hand, offers the possibility of pursuing claims for triple compensation, monetary damages, profit transfer, and injunctions. The fact that the Ministry presents both civil and criminal paths together on the same page also demonstrates that this dual structure is consistent with the logic of the legislation.

Why is the structure of evidence so decisive in choosing an option?

The most critical factor in determining whether to pursue a criminal case or a civil lawsuit is evidence. If you have strong technical evidence—such as a list of installed software, version records, license keys, logs, network license manager data, traces of cracks, or reseller documents—both criminal and civil proceedings will be more effective. However, if the evidence is scattered, prone to rapid loss, and requires a technical examination of the opposing party's system, establishing a lawsuit strategy without first securing the evidence is risky.

At this point, the institution of evidence gathering in the Code of Civil Procedure (HMK) comes into play. According to Article 400 of the Code of Civil Procedure No. 6100, in a pending case, an on-site inspection, expert examination, or witness testimony may be requested to ascertain a fact that has not yet been examined or that will be presented in a future case. The same provision states that a legal interest is deemed to exist if there is a possibility that the evidence will be lost or its presentation will be significantly more difficult if it is not immediately identified. Since log records, device images, user matches, and activation traces in software files can be easily altered, evidence gathering is often a strategic first step.

Articles 401-403 of the Code of Civil Procedure also stipulate that evidence gathering can be requested from the court that will hear the main case or from the civil court of peace in the location where the matter is located, before the lawsuit is filed, and that in urgent cases, evidence gathering can be done without notification to the opposing party. This is of great importance, especially in cases where there is a risk of software deletion, device changes, or installations being rendered invisible. Thus, the rights holder can secure the technical data before filing a compensation lawsuit or concluding a criminal complaint.

Digital evidence provides an advantage in criminal proceedings

When criminal proceedings are initiated, or at least when a criminal complaint is filed, Article 134 of the Code of Criminal Procedure (CMK) takes on particular importance regarding digital evidence. According to the official CMK text, in investigations related to a crime, if there are strong grounds for suspicion based on concrete evidence and there is no other way to obtain evidence, a decision may be made to search computers, computer programs, and computer files, to make copies of computer records, and to decrypt and transcribe these records. Prosecutor's decisions are submitted to the judge for approval within a short time; seizure is also possible if the password cannot be decrypted or if the process would take a long time.

This provision demonstrates that the criminal procedure not only creates "sanction pressure" but also has the potential to protect technical evidence in a manner close to forensic computing standards. Especially with regard to traces of cracks, forged activations, license cracking tools, shared network usage, or logs at risk of deletion, the framework of Article 134 of the Code of Criminal Procedure can create a stricter protection area than a civil lawsuit. Therefore, in cases where evidence needs to be secured quickly, the criminal procedure sometimes provides a strategic advantage.

The pressure to prove and document the issue of compensation

In legal proceedings, Article 76 of the Copyright Law is decisive. As stated in the Ministry's official announcement, the court may request the user to provide the necessary permits and authorization documents or a list of the works used; failure to provide these constitutes a presumption of unauthorized use. This provision is particularly important for companies. Many companies defend themselves by saying, "We actually had a license," but this defense can technically collapse if they don't keep proper records of documents such as invoices, user assignments, subscription records, contract addendums, and installation inventories.

Therefore, if a compensation claim is to be filed, not only a narrative of the breach but also a discipline of documentation and statistics must be established. Which version was used, how many users are there, what is the licensing model, how will the market value be calculated, what data will be used to determine the hypothetical contract price; all of this must be systematically shown in the case file. Otherwise, although a triple compensation claim is theoretically strong, it may be weak in terms of proof.

How should the choice of litigation be interpreted from a corporate perspective?

When a company is targeted, the choice between a criminal case and a civil lawsuit becomes even more delicate. For companies, the issue is not just about the verdict, but about operational continuity. A criminal complaint creates pressure from the prosecutor's office, equipment inspection, and reputational risk. A civil lawsuit, on the other hand, carries the risk of high costs, injunctions, and interim measures. If the software is the company's main production tool—for example, accounting, CAD, ERP, or production software—even an injunction from a civil court can have an effect similar to criminal pressure. The Ministry's statement clearly outlines the framework for a civil lawsuit, alongside injunctions and triple damages.

Therefore, the most rational approach from the rights holder's perspective is often established in the following order: first, evidence is secured; then, the nature of the use is analyzed; and finally, it is determined whether the main objective is sanction, collection, cessation, or all of them. If the commercial damage is severe and collection is the priority, a civil lawsuit takes precedence. If the loss of evidence, the use of cracks, or the need for clear deterrence are prominent issues, a criminal complaint is also added to the file. In practice, a hybrid strategy is more functional in many cases than "just punishment" or "just compensation.".

Should mediation also be considered?

In commercial disputes involving monetary claims for software license violations, mandatory mediation should be considered separately. The Ministry of Justice's training material on expert mediation in intellectual property law explains that claims for payment of a sum of money and compensation under Article 5/A of the Turkish Commercial Code can be handled within the scope of mandatory mediation; this is particularly important in cases arising from intellectual property legislation that involve monetary claims. However, non-monetary claims, such as the removal of content or the cessation of use, are not included within the same scope. Therefore, whether only compensation is sought in a software license violation case, or whether requests for prohibition and removal are also included, can affect the procedural approach.

Conclusion

The correct answer to the question of whether to pursue a criminal case or a civil lawsuit in software license infringements is not "only one." In Turkish law, the same event can lead to both criminal and civil proceedings. The criminal route is strong in terms of sanctions, deterrence, pressure from the prosecutor's office, and the protection of digital evidence. The civil route, on the other hand, produces more direct economic results in terms of triple compensation, monetary damages, profit transfer, and requests for injunctions and measures. Which route the rights holder chooses depends on the nature of the evidence, the severity of the infringement, whether a crack or breach of protection element is involved, and the ultimate goal of the infringement.

In practice, the most effective strategy is often a combination of these two approaches. If there's a risk of evidence quickly disappearing, then evidence gathering under the Code of Civil Procedure takes precedence; if technical and legal assurance is required, then a criminal complaint is pursued; and if the goal is collection and cessation of use, then a civil lawsuit comes to the forefront. For companies, the outcome is clear: unlicensed software files are no longer just a matter for the IT department. If mismanaged, these files can escalate into multi-layered legal crises, creating significant risks of both damages and penalties.

Frequently Asked Questions

Can only criminal proceedings be initiated in cases of software license infringement?
No. According to the official Ministry statement, both civil and criminal proceedings can be initiated in cases of copyright infringement.

In what type of lawsuit is a claim for three times the price made?
This claim is made in a civil lawsuit, under Article 68 of the Law on Intellectual and Artistic Works. The Ministry also explicitly states that the rights holder, whose permission has not been obtained, can only claim a maximum of three times the price they could have requested if a contract had been made, or the market value.

What is required to file a criminal complaint?
The rights holder or authorized professional association can apply to the prosecutor's office; the prosecutor can take action for seizure and necessary protective measures in accordance with the provisions of the Code of Criminal Procedure (CMK). If digital evidence is required, searching, copying, and, if necessary, seizing computers and programs may be possible within the framework of Article 134 of the CMK.

What should be done before evidence is lost?
According to Articles 400 and subsequent articles of the Code of Civil Procedure, a request for evidence preservation should be made. Especially if there is a possibility of digital records being deleted or traces of use being lost, in urgent cases, evidence preservation can be carried out without notification to the opposing party.

Is mediation relevant in copyright cases involving monetary claims?
In practice, mandatory mediation is considered separately in commercial intellectual property disputes involving monetary claims and damages; however, non-monetary claims such as removal or cessation of use are not included in the same scope.