Is Using Unlicensed Software a Crime? A Guide to Criminal Liability

 Is using unlicensed software a crime under Turkish law? Articles 71 and 72 of the Turkish Copyright Law, the complaint requirement, the prosecution process, digital evidence, compensation, and criminal risks for companies are covered in this comprehensive guide.

In the digital economy, software has become one of the most fundamental production tools for companies and professionals. From accounting programs to CAD software, ERP systems to design tools, software is at the heart of almost every commercial activity. Therefore, the question of "Is using unlicensed software a crime?" is not merely a technical IT question; it is directly related to copyright law, criminal law, and evidentiary law. In Turkish law, computer programs are protected under Law No. 5846 on Intellectual and Artistic Works; the purpose of this law is to protect the moral and financial rights of authors and to determine sanctions in case of unauthorized use. Furthermore, computer programs are specifically defined in the law as works of science and literature.

In this context, the first and clear answer is: Yes, using unlicensed software can constitute a crime under certain conditions. However, not every licensing dispute automatically results in a criminal conviction. In Turkish law, the core of criminal liability is the crime of "infringement of moral, financial, or related rights," as defined in Article 71 of the Copyright Law. According to this article, anyone who processes, represents, reproduces, modifies, distributes, publicly transmits, publishes, or commercially purchases, imports, exports, possesses, or stores illegally reproduced works or computer programs without the written permission of the rights holder is subject to imprisonment for one to five years or a judicial fine. Therefore, unlicensed software installed and used commercially in a company environment is not only a contractual problem but also a form of use that carries a risk under criminal law.

Why is software protected under criminal law?

This is because, under Turkish law, a computer program is considered not just an ordinary technical product, but a work subject to copyright protection. The Turkish Copyright Law defines a computer program as a sequence of commands that enables a computer system to perform a specific operation or task, and the preparatory work that facilitates the development of this sequence. Furthermore, Article 2 of the law stipulates that computer programs, expressed in any form, and preparatory designs under certain conditions, are considered works of science and literature. While the same law states that the underlying ideas and principles of the program are not considered works, it is undeniable that what is protected is the expressed form of the software itself.

The fact that software is considered a work means that the financial rights also belong to the author. According to Article 22 of the Law on Intellectual and Artistic Works, the right of reproduction belongs exclusively to the author, and this right, in the case of computer programs, covers not only the creation of physical copies but also operations such as installation, viewing, execution, transmission, and storage of the program. This regulation is very important because in practice, many people think, "I only used it, I didn't reproduce it." However, the law also includes some operations necessary for the technical operation of the software within the right of reproduction. Therefore, unlicensed installation and use can be the starting point of the risk of penalties.

Is every licensing violation a criminal offense?

There is a subtle distinction here. Not all licensing problems carry the same weight. For example, regarding a legally acquired computer program, Article 38 of the Turkish Copyright Law grants the freedom to reproduce and process the program for its intended use, unless the contract specifies otherwise. The same article states that the installation, execution, and correction of errors in a legally acquired program cannot be prevented by contract; and that even a single backup copy cannot be prohibited as long as it is necessary for use. Furthermore, monitoring and testing the program's operation is also permitted within certain limits. Therefore, necessary technical operations performed on software acquired with a legal license are not the same as unlicensed or unauthorized use from the outset.

However, these exceptions do not legitimize pirated or exceeded license limits. A company installing a single-user license on ten computers, continuing to actively use expired software, using an educational license for commercial projects, disabling protection with cracks or activation tools, or unauthorized license sharing among group companies creates a far more serious situation than a simple contract interpretation. Especially in the case of company use, the element of "possession or storage for purposes other than personal use" occurs in most cases, directly bringing Article 71's penal regime into play.

Which actions clearly raise suspicion of a crime?

Looking at the first paragraph of Article 71 of the Law on Intellectual and Artistic Works (FSEK), the scope of the crime is quite broad. The crime includes processing, representing, reproducing, modifying, distributing, publicly communicating, and publishing unlawfully processed or reproduced works without the written permission of the copyright holder; offering for sale, selling, renting, lending, purchasing for commercial purposes, importing or exporting, possessing or storing such works for purposes other than personal use. In terms of software, this means that continuing to keep a pirated installation in a commercial environment is as risky as installing it illegally. Even without physical sale, storage and possession for commercial purposes can also give rise to criminal disputes.

The most common risky scenarios in companies include: spreading a single license among numerous users, transferring license keys to third parties, reusing old employee licenses, exceeding the number of licenses on virtual servers, keeping a trial version in a production environment, detaching an OEM license from the connected device and using it on different hardware, and having an external IT company perform a cracked installation. In each of these cases, the scope of the act and the level of intent are examined separately; however, once the case is referred to the prosecutor's office, the issue is no longer simply "an accounting difference that could have been resolved by purchasing additional licenses." Because what is examined in a criminal case is whether there has been any unauthorized use of the copyright in commercial life.

Cracks, keygens, and anti-security tools also create a breeding ground for crime

In unlicensed software files, not only the program itself but also the cracking tools that enable its use are important. With Law No. 7346, which came into effect on December 25, 2021, Article 72 of the Copyright Law was amended, and the protection system was defined much more broadly. The new regulation stipulates imprisonment for six months to two years for those who manufacture, import, distribute, sell, rent, or possess for commercial purposes products and tools aimed at circumventing effective technological measures provided through access control, encryption, or reproduction control mechanisms to control the use of works, performances, phonograms, productions, and broadcasts, as well as those who provide advertising, marketing, design, or implementation services for such products and tools. This change has expanded the old narrow, computer-program-centric approach and strengthened the anti-circumvention regime.

Therefore, the criminal aspect of unlicensed software can progress along two axes. The first axis is the direct unauthorized reproduction and commercial use acts under Article 71. The second axis is the use or commercial circulation of tools that circumvent protection and access measures under Article 72. In other words, the presence of a cracked program within a company may not only constitute "unauthorized use" but also, depending on how the cracking was done, may also raise the crime of rendering technological security measures ineffective.

How is criminal liability structured in companies?

The risk is greater for companies because the use is commercial in nature, the number of devices and users is larger, and the pool of evidence is wider. The phrases "purchasing for commercial purposes," "importing or exporting," and "possessing or storing for purposes other than personal use" in the text of Article 71 of the Law on Intellectual and Artistic Works make company use far more vulnerable than individual use. If an architectural office has unlicensed CAD software, a financial consultancy firm has unlicensed accounting software, or a manufacturing company has an unlicensed ERP solution, the defense will no longer be centered on personal needs but on commercial operations.

Furthermore, the risk for companies is not limited to criminal proceedings. Article 66 of the Turkish Copyright Law stipulates that a person whose moral and financial rights have been violated can sue for the cessation of the infringement, and if the infringement was committed by the company's representatives or employees, a lawsuit can also be filed against the company owner, without fault being a prerequisite. Article 68, on the other hand, allows the rights holder to claim up to three times the amount they would have requested if a contract had been made, or the market value, in cases of unauthorized processing, reproduction, distribution, representation, or public transmission. In other words, the risk of criminal penalties and the risk of civil damages can progress simultaneously.

How does an investigation begin? What are the requirements for filing a complaint?

In the Copyright Law, these offenses are not prosecuted ex officio. According to Article 75, investigation and prosecution for the offenses listed in Articles 71 and 72 are subject to complaint. For the complaint to be considered valid, the rights holders or the professional associations to which they belong must submit documents and other evidence proving their rights to the Chief Public Prosecutor's Office. If these documents are not submitted within the complaint period, a decision of no grounds for prosecution will be issued. In this respect, in unlicensed software files, not only the existence of infringement but also the proof of ownership and the licensing chain are of great importance.

Upon receiving a complaint, the public prosecutor can take measures to seize and implement protective measures in accordance with the provisions of the Code of Criminal Procedure. The same article states that, if deemed necessary, the prosecutor may also order the suspension of the activity, limited to the reproduction of the works alleged to have been illegally reproduced, but this decision must be submitted for judicial approval within twenty-four hours. In practice, this is a serious tool of pressure, especially for businesses with reproduction and distribution chains. In short, an investigation into unlicensed software is not just a process of taking statements; depending on the nature of the case, it can be a criminal procedural process that can affect the operation.

How are searches, copying, and seizures performed on computers?

One of the most critical issues in unlicensed software files is digital evidence. According to Article 134 of the Code of Criminal Procedure No. 5271, 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 judge, or in cases where delay would be detrimental, the public prosecutor, may order a search of the computer and computer programs used by the suspect, the copying of records, and their transcription into text. The prosecutor's decision must be submitted to the judge for approval within twenty-four hours; the judge must also make a decision within twenty-four hours. If the password cannot be decrypted, if confidential data cannot be accessed, or if the process will take a long time, temporary seizure of the devices is possible; furthermore, a backup of all data in the system is taken, and a copy is given to the suspect or their lawyer.

This regulation shows that an investigation into unlicensed software is not limited to a few screenshots found on the desktop. The file may include lists of installed programs, license keys, server logs, remote access records, virtual machine images, subscription history, purchase invoices, and user-based authorizations. Constitutional Court rulings also emphasize that Article 134 of the Code of Criminal Procedure is a protective measure subject to specific conditions, and that in cases of unlawful seizure, compensation is possible under Article 141 of the Code of Criminal Procedure. Therefore, compliance with procedural rules is extremely important for both the prosecution and the defense.

Why are the aspects of proof and precautionary measures important?

When a civil lawsuit is filed alongside a criminal case, Articles 76 and 77 of the Law on Intellectual and Artistic Works (FSEK) also come into play. According to Article 76, specialized courts are competent to handle disputes within the scope of the FSEK. More importantly, when the plaintiff presents evidence sufficient to establish a strong conviction regarding the veracity of their claim, the court may request that those using the works or programs provide documents demonstrating that they obtained the necessary permissions and authorizations, or a list of the works used. Failure to provide these documents and lists creates a presumption of unlawful use. This is precisely why it is vital for companies to regularly maintain their license documents, subscription agreements, and user-based inventories.

Article 77 stipulates that a preliminary injunction may be issued before or after a lawsuit if there is a risk of substantial harm, imminent danger, or a fait accompli. The court may order the performance or prohibition of an action, decide on the closure or opening of a workplace, or seize duplicated copies or means of reproduction. In the case of unlicensed software, this means not only the threat of punishment but also the possibility of suspension of use and interference with the system's operation.

So, is using unlicensed software a crime?

Yes; however, the correct statement should be: Using software without a license, especially for commercial and corporate use, is a very serious act that can constitute a crime under Article 71 of the Turkish Copyright Law. If the use extends to reproduction, distribution, public transmission, possession for commercial purposes, or storage without the written permission of the rights holder, then criminal liability arises. If this is accompanied by means that circumvent the protection, the current Article 72 may also come into play. Conversely, actions such as the mandatory operation of a legally acquired program under license, bug fixing, or making a backup copy cannot be equated. The fundamental distinction legitimate use and unauthorized commercial use .

What should companies do?

The most correct approach is not to build a defense after a crisis arises, but to establish license compliance from the outset. Every company should create a software inventory based on devices and users; keep a record of the license document on which each installation is based; monitor installations performed by external IT firms; prevent the commercial use of trial, training, and personal licenses; track subscription periods; and revoke license access for departing employees. Because when a lawsuit or investigation begins, the strongest defense is not the statement "this program was running on our system," but proof that "we were using this program within this scope and based on this document." The presumption regime in Article 76 of the Turkish Copyright Law also confirms this.

Conclusion

The use of unlicensed software cannot be considered a simple lack of licensing under Turkish law. Computer programs are protected as works under the Law on Intellectual and Artistic Works (FSEK); their reproduction, installation, execution, and storage are linked to the intellectual property rights regime. Commercial use without the written permission of the rights holder may result in imprisonment of one to five years or a fine under Article 71 of the FSEK. When factors such as the requirement for a complaint, the prosecution process, seizure, examination of digital evidence, precautionary measures, and triple compensation are combined, unlicensed software files can have serious consequences in both criminal and civil terms. For companies in particular, this issue is not just a matter of IT management, but directly related to legal compliance.

Frequently Asked Questions

1. Does using unlicensed software always result in imprisonment?
No. Whether a crime has been committed is determined by the scope of the act, the evidence, the extent of commercial use, and the court's discretion. Article 71 of the Law on Intellectual and Artistic Works stipulates a penalty of "imprisonment from one to five years or a judicial fine."

2. If the cracked program within the company is only on one computer, would it still be a crime?
Having it on a single device doesn't automatically create a safe environment. A criminal offense could still arise if there is reproduction, use, or possession for purposes other than personal use without the written permission of the copyright holder.

3. Does purchasing a license later eliminate past risk?
As a rule, no. Purchasing a license later provides for future compliance; however, it does not automatically erase the risk of penalties and compensation arising from unauthorized use in the past. This is clearly seen when Articles 68 and 71 of the Law on Intellectual and Artistic Works are considered together.

4. Can the prosecutor's office seize computers?
Yes, if the conditions in Article 134 of the Code of Criminal Procedure are met. However, this requires strong suspicion based on concrete evidence and the inability to obtain evidence by other means; there are also procedural safeguards such as making backups and providing a copy to the suspect.

5. Is using a device that circumvents protection also a crime?
Yes. Since December 25, 2021, Article 72 of the Law on Intellectual and Artistic Works (FSEK) has also made products, devices, and services aimed at rendering technological measures ineffective subject to additional penalties.