Seizure, Search, and Digital Examination Process in Cases of Unlicensed Software Use

 How are searches, seizures, and digital examinations conducted in unlicensed software investigations? A comprehensive guide explaining the process regarding company computers, servers, home-office devices, and digital evidence within the framework of Turkish law, including the Copyright Law, Code of Criminal Procedure, Constitution, and Personal Data Protection Law.

The use of unlicensed software is often discussed in practice under the heading of "copyright infringement"; however, when the case reaches the prosecutor's office or law enforcement, the issue ceases to be merely a dispute over license fees. At this point, criminal procedural issues such as search, seizure, digital copying, log analysis, device return, backup, limits on personal data, and the lawful acquisition of evidence come into play. In Turkish law, computer programs are protected as works; computer programs are defined in the law, considered scientific and literary works, and the installation, viewing, execution, transmission, and storage of the program are also subject to the copyright holder's right of reproduction. Therefore, the allegation that unlicensed software is found on a company computer or server may not only be a contractual dispute but, under certain conditions, may also constitute an intellectual property infringement that could be subject to criminal investigation.

The most critical mistake in this discussion is the tendency to swing between two extreme assumptions regarding unlicensed software files: either "automatic searches are conducted upon every report" or "law enforcement can inspect everything without limit when they arrive." In Turkish law, search and seizure are directly evaluated within the framework of the Constitution's provisions on private life, inviolability of the home, confidentiality of communication, and the prohibition of illegally obtained evidence. According to the Constitution, private papers and belongings cannot be searched or seized without a court order; entry into a home is prohibited, the confidentiality of communication cannot be violated, and findings obtained illegally cannot be accepted as evidence. Therefore, even if suspicion of unlicensed software is strong, it does not provide a blank check for an irregular search or excessive digital inspection.

How does the process usually begin?

The criminal aspect of using unlicensed software often becomes apparent upon a complaint from the rights holder or the authorized professional association. According to the current text of the Law on Intellectual and Artistic Works (FSEK), investigation and prosecution for the offenses under Articles 71 and 72 are dependent on a complaint; moreover, 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 and evidence are not submitted within the complaint period, a decision of no grounds for prosecution will be issued. The same provision stipulates that, upon a complaint, the public prosecutor will take measures regarding the seizure of the incriminating material in accordance with the provisions of the Code of Criminal Procedure (CMK) and, if deemed necessary, may suspend the activity limited to the reproduction of the works alleged to have been illegally reproduced; this decision will be submitted for judicial approval within twenty-four hours. In this context, a significant portion of unlicensed software files begin with license documents, audit records, serial numbers, log outputs, or screenshots submitted directly to the prosecutor's office.

The penal provisions of the Copyright Law also provide the legal basis for the investigation. According to the current text, processing, representing, reproducing, modifying, distributing, publicly transmitting, publishing a work without the written permission of the copyright holder, or purchasing, importing or exporting illegally reproduced works for commercial purposes, possessing or storing them for purposes other than personal use, are regulated under the threat of punishment. Furthermore, producing, offering for sale, selling, or possessing for purposes other than personal use, programs or technical equipment designed to disable protective programs created to prevent the illegal reproduction of computer programs, is also subject to sanctions. Therefore, files containing cracks, keygens, license bypass tools, or fake activation infrastructures may pass the investigation threshold more quickly.

Under what conditions is a search warrant issued?

According to the Code of Criminal Procedure, a suspect's or defendant's person, belongings, residence, workplace, or other places belonging to them reasonable suspicion . Searches of other individuals' persons, belongings, residences, or workplaces are also permissible; however, in this case, there must be circumstances that suggest the presence of the person being searched or the evidence of the crime at the specified location. In the case of unlicensed software files, this means that the search for concrete data will vary in intensity, for example, in the server room at the company headquarters, the workstations used by employees, the office of an external service provider, or home-office devices. There is no direct automaticity between a purely abstract tip and a serious digital intrusion.

Search warrants are, as a rule, issued by a judge. In cases where delay would be detrimental, law enforcement may conduct searches upon the written order of the public prosecutor; however, the warrant or order must clearly state the act constituting the reason for the search, the person or place to be searched, and the period during which the warrant will be valid. Furthermore, if a search is to be conducted in a residence, workplace, or other enclosed space without the presence of a prosecutor, two individuals from the local council or neighbors must be present. The owner or possessor of the place to be searched may also be present; if not, their representative, a close relative with the capacity to understand, or a neighbor must be present. These rules demonstrate that searches, particularly those conducted on company premises, are not a "silent and unrecorded" procedure but rather a procedural measure subject to formal requirements.

There is also a specific restriction regarding nighttime searches. According to Article 118 of the Code of Criminal Procedure, nighttime searches cannot be conducted in residences, workplaces, or other enclosed spaces; this prohibition only applies in exceptional circumstances such as flagrant crimes, situations where delay would be detrimental, or the recapture of a fugitive/detained person. This rule is particularly important in the case of unlicensed software files, company offices, or home-office workspaces. In practice, the concern that "digital evidence might be deleted" does not always automatically justify a nighttime search; the specific circumstances must have a truly unavoidable nature. This is a procedural consequence directly derived from the text of the article.

When is seizure possible?

Seizure is a protective measure separate from, but connected to, a search. According to the Code of Criminal Procedure (CMK), items and assets deemed useful as evidence or subject to confiscation are secured; seizure can be applied if the person does not voluntarily surrender them. Seizure is generally carried out by a judge's decision; in cases where delay would be detrimental, law enforcement can carry out the seizure with a written order from the prosecutor. The prosecutor's written order is submitted to the judge for approval within twenty-four hours; if the judge does not make a decision within forty-eight hours of the seizure, the measure is automatically lifted. The person whose property has been seized can always request a decision from the judge on this matter. In this context, in an investigation into unlicensed software, not only the computer on which the software is installed but also materials containing license keys, crack tools, external hard drives, server images, or activation records can be subject to the measure.

The Constitution also emphasizes the judicial guarantees for seizure measures. For private papers and belongings, a judge's decision is paramount; although seizure can be carried out by written order of the competent authority in cases where delay would be detrimental, this decision must be submitted to a judge for approval within twenty-four hours, and the judge must make a decision within forty-eight hours; otherwise, the seizure is automatically lifted. A similar time-bound judicial control mechanism is also foreseen for the inviolability of the home and the confidentiality of communication. This constitutional framework clearly shows that seizure in unlicensed software investigations cannot be made unlimited on the grounds of "technical necessity.".

The heart of the digital inspection process: Article 134 of the Criminal Procedure Code

In cases involving unlicensed software files, the decisive provision is often Article 134 of the Code of Criminal Procedure (CMK). This article stipulates that, in an investigation, if there is no other way to obtain evidence, the judge may, upon the prosecutor's request, order a search of the suspect's computer and computer programs, as well as computer files, the copying of computer records, and their decryption into text. Two thresholds are particularly important here: firstly, the text of the article targets the investigation phase; secondly, it requires the condition of "no other way to obtain evidence" for digital search and copying. Therefore, even if there is an allegation of pirated software on a company computer, the law enforcement's first reflex is not always to directly take an image of the entire system; whether a result can be obtained through less invasive means is also important.

The second paragraph of the same article allows for the seizure of devices if the encryption cannot be decrypted or the hidden information cannot be accessed. However, this seizure is not based on the logic of permanent confiscation, but rather on the purpose of decrypting the data and making the necessary copies; the text of the article mandates the immediate return of the seized devices once the decryption and copying are complete. This distinction is crucial because, in practice, companies often worry that "if the servers are seized, we won't be able to get them back for months"; whereas the systematic approach of Article 134 of the Criminal Procedure Code is based on the return of the devices after access to the digital evidence has been gained. Of course, the magnitude of the specific case, the system architecture, and the workload of the investigation may cause the process to be prolonged in practice; however, the rule in the text of the article is that the return should not be delayed.

One of the most important safeguards of Article 134 of the Code of Criminal Procedure is the mandatory backup requirement to prevent the unilateral and untraceable acquisition of digital evidence. According to the law, all data must be backed up during the seizure of computers or computer files. If the relevant person requests it, a copy of this backup is given to them or their representative, and this fact is recorded in the minutes and signed. Furthermore, even without seizure, all or part of the data in the system can be copied; the copied data is printed on paper, this fact is recorded in the minutes, and signed by the relevant parties. These provisions ensure the traceability of the chain in the digital forensics process and allow the defense to answer questions such as "what data was seized, what was copied, and what was tampered with."

The practical conclusion drawn from this is that in investigations into unlicensed software, digital examination is not simply about taking the device. The law establishes a combination of processes: searching, copying, analyzing, backing up, providing copies, and documenting. Therefore, the most appropriate approach for companies is neither to refuse to open or show the device when law enforcement arrives, nor to leave the entire system defenseless. The key is to understand which data set the decision-based and proportionate intervention is directed at, to carefully monitor the records, and, if possible, to ensure coordination between technical and legal teams. The last sentence in this paragraph is a direct inference based on the practical logic of the safeguards in Article 134 of the Code of Criminal Procedure.

Are email, messaging, and communication logs a separate area?

Yes. One of the most common misconceptions in practice is that copying data from a company's computer or server is the same as monitoring communications. However, the Constitution separately protects the confidentiality of communication; interference with communication is, as a rule, subject to a court order. Article 135 of the Code of Criminal Procedure regulates the detection, listening, and recording of communications via telecommunications as a separate measure; this measure strong suspicion and the inability to obtain evidence otherwise, and it is also limited to the crimes listed individually in the law. The crimes listed in the article do not include the crimes in Articles 71-72 of the Law on Intellectual and Artistic Works. Therefore, the measure of monitoring telecommunications cannot be automatically applied simply because an investigation into unlicensed software is being conducted; the judicial copying of existing email archives on a company server and the listening to live communications do not constitute the same legal regime.

This distinction is particularly vital with regard to corporate email and messaging tools. Past email data contained in a laptop image or archived correspondence on a server can technically be accessed under Article 134 of the Code of Criminal Procedure; however, monitoring, directing, or real-time tracking of live communication is subject to different and stricter safeguards. Therefore, the assumption that "our computers have already been seized, so all communication can now be examined without restriction" or the claim that "email cannot be touched at all" is incorrect. The correct approach is to distinguish between how the data was obtained and under what precautionary regime it was collected. This paragraph is the legal conclusion drawn from reading Article 22 of the Constitution together with Articles 134 and 135 of the Code of Criminal Procedure.

Personal data and internal parallel review

The criminal investigation conducted by public authorities is separate from the company's own internal compliance review. Regardless of the prosecution process, the company must also consider the Personal Data Protection Law (KVKK) when examining which software is installed on its systems, who is using which license key, user logs, email alerts, or device inventory. Article 10 of the KVKK imposes an obligation to inform the data controller; Article 12 regulates the obligation to prevent the unlawful processing and access to personal data, to preserve data, to take necessary technical and administrative measures, and to conduct necessary audits. The same article also includes joint responsibility with third parties processing personal data on behalf of the data controller and the obligation of confidentiality that continues even after leaving their position. Therefore, when investigating suspicions of unlicensed software, the company should not establish an excessive and irrelevant "general oversight" mechanism; the investigation must be relevant and proportionate to the incident under investigation.

The balance here is important. On the one hand, the company has an obligation to preserve evidence and ensure compliance; on the other hand, the personal data of employees, managers, or customers should not be unnecessarily disclosed during the audit. For example, collecting license server logs, activation emails, or device lists is often a legitimate step in an internal audit; however, if its scope, purpose, and access rights are not determined beforehand, another compliance issue may arise later. This paragraph is a natural consequence of applying Articles 10 and 12 of the Turkish Personal Data Protection Law to internal audit processes such as license compliance.

Civil law and interim injunction aspects

Unlicensed software files don't always lead to criminal investigations first or solely. Articles 76 and 77 of the Turkish Copyright Law (FSEK) also strengthen the avenues of protection in civil courts. According to the current text, in civil cases under the FSEK, if sufficient evidence is presented to establish strong conviction regarding the accuracy of the plaintiff's claim, the court may request documents proving that the users of the work obtained the necessary permissions and authorizations, or a list of the works used; failure to provide these documents or lists constitutes a presumption of unlawful use. Furthermore, to prevent substantial harm, imminent danger, or faits accomplis, the civil court may issue a preliminary injunction before or after the lawsuit; measures such as closing/opening the place where the work was done, prohibiting or not performing a specific act, and seizing reproduced copies or reproduction tools may be taken. Therefore, even if a criminal investigation does not begin in the case of unlicensed software, it is possible to encounter very rapid and highly effective measures in civil courts.

This principle translates into practice as follows: instead of, or in addition to, filing a complaint with the prosecutor's office, the rights holder may first seek an injunction in a civil court. The risk for the company should not be underestimated in this case either; because the closure of the server room, the cessation of the use of certain software, the confiscation of copies, or the requirement to present license documents to the court can directly affect commercial activity. The conclusion in this paragraph is a legal inference regarding the impact of Articles 76 and 77 of the Copyright Law on corporate operations.

How should companies act in practice?

The biggest mistake in cases of suspected unlicensed software is deleting data, secretly reinstalling systems, or clearing logs. The Constitution explicitly states that findings obtained illegally cannot be accepted as evidence; however, this principle does not legitimize the company destroying evidence. On the contrary, the logic of Article 134 of the Code of Criminal Procedure is to protect the integrity of digital data, create backups, and make the investigation traceable. Therefore, the company's first reflex should not be "let's leave no trace," but rather to legally determine which software is installed on which devices, which license documents exist, and which data may be critical to the investigation. This paragraph is the result of an application derived from the combined interpretation of Article 38 of the Constitution and Article 134 of the Code of Criminal Procedure.

Secondly, the company must not separate its technical and legal defenses. When a search and seizure warrant is issued, its scope, duration, the addresses or devices covered, the reasons for the warrant, and what is recorded in the minutes must be carefully monitored. The defense attorney and the IT team must speak the same language, clarifying questions such as "which server image was taken," "which user account was examined," "which backup was provided," and "which device was returned and when." This is a direct practical application of the guarantees regarding minutes, scope, and copies in Articles 119 and 134 of the Turkish Criminal Procedure Code.

Thirdly, continuing the license violation while the investigation is ongoing creates a separate risk. Article 75 of the Turkish Copyright Law states that, upon complaint, the prosecutor can initiate seizure proceedings and, if necessary, temporarily halt the reproduction activity; Article 77 also opens the way for injunctive relief in civil courts. Therefore, if the company continues to use the disputed software, thinking "there is no ruling yet," it can both escalate the damages and the dispute over fault. This paragraph is a consequence of the application of Articles 75 and 77 of the Copyright Law regarding the investigation-compliance relationship.

Conclusion

The seizure, search, and digital examination process in cases of unlicensed software use is not merely a technical operation under Turkish law. The process begins with the complaint and rights violation regime in the Law on Intellectual and Artistic Works (FSEK); it is limited by the constitutional provisions regarding private life, domicile, communication, and the prohibition of illegally obtained evidence; it is shaped by the search, seizure, and digital copying provisions of the Code of Criminal Procedure (CMK); and in the company's internal investigation, it is balanced by the disclosure and data security rules of the Personal Data Protection Law (KVKK). Therefore, when an allegation arises that pirated software is found on a company computer, the matter is neither as simple as "let's just get a license and it'll be over," nor as unrestricted as "law enforcement can look at everything." Procedure is almost as important as the outcome in such cases.

The correct legal approach is neither to reject search and seizure measures outright nor to accept them without question. The key is to consider the legal basis of the complaint, the scope of the decision, the limits of digital examination, the distinction between communication and personal data, the guarantees regarding records and copies, and, if necessary, the risk of parallel measures in a civil court. In the case of unlicensed software files, the strongest defense is often not simply saying "there's no problem," but rather managing the process properly, protecting the evidence without compromising it, and placing the technical reality within the correct legal framework.