In early 2021, the Zhytomyr Court determined a cause regarding pirated games, which is unusual for Ukrainian legal practice. A user who pleaded guilty to patching the Sony PlayStation 3 console, was fined ₴21,000. AIN.UA shares some detail of the case and a commentary from a lawyer about the official penalties for piracy.

What happened

According to the materials of the case, a citizen of Zhytomyr published on OLX and Prom.ua website an add that he can sell and install games and software on PlayStation gaming consoles (what is prohibited by the console producer). The exact place and time of a crime remained undetermined.

Then in the GameBox shop, he installed HEN and Webman programs on his laptop to “patch” PlayStation 3 console. After that, he downloaded pirated copies of games from the torrent website rutracker.org and installed them on the console. Among the games, there were popular titles, including GTA 5, Тhe Last of Us, Skyrim, Mortal Kombat, FIFA, Far Cry 3, Call of Duty: Black Ops 2.

What are claims against the Zhytomyr citizen? The case was investigated according to part 1, article 361 of the Criminal Code of Ukraine (also known as the “hacker” article that used to be applied against people who hack computer systems, spread viruses, etc.). The user was charged with unauthorized access to computer machines that led to faking data in a PlayStation 3 gaming console.

There were no claims for copyright infringement. However, Sony Interactive Entertainment Europe Limited should have claimed such an infringement.

The user admitted his guilt, so the Court determined a penalty of ₴10,200 for him. He also must pay ₴11,114 of legal costs, so the total charge was over ₴21,000.

AIN.UA asked lawyers for a commentary on this case to find out if it means that Ukraine has established the legal practice of punishment for piracy, the penalty for “patched” consoles, and how the authorities became aware of that crime.

Commentary of the lawyer

It is unknown how the police became aware of the suspect, Still, the Senior Lawyer of Axon Partners, Mykhailo Yudin, supposes that the policemen could react to the advertisement on OLX and Prom.ua. After that, they could make a test purchase involving the investigators. The lawyer said that it is unlikely that Sony itself initiated the case. Instead, it looks more like the officers discovered the crime independently. The lawyer also pointed out that the sanctions according to part 1, article 361 of the Criminal Code of Ukraine are very severe, including the restriction of freedom and imprisonment. So, that guy is fortunate and has got a light penalty because he admitted his crime and signed a settlement.

So, how does it look now with console patching based on this decision? Here is the commentary of the lawyer (all markings are just editorial):

“From one side, the resolution of this case is an example of a relatively new legal practice when a person was charged with the fact of illegal game installation on the console. From another side, there was a special rule for that in the Criminal Code since 2003 that was amended and extended with time.

Why the police decided to deal with it only now remains unknown. It could be a single act of a particular investigation department or a new trend of government to fight against piracy. However, looking at the Unified State Register for Court Resolutions, there is no evidence for such a trend with charges according to article 361 of the Criminal Code.

In addition, different user manipulations with “patched” consoles can be subject to violation of other laws too.

  • For example, downloading, installing, and using non-licensed games is a copyright infringement and can cause civil lawsuits, including compensations for losses and administrative and criminal claims. The last ones can result in penalties, freedom restrictions, and other sanctions depending on the severity of a crime. Many people, including merchants, can appear to be criminals because they use “patched” consoles. However, even if the merchants do not “patch” and only sell “patched” consoles, it corresponds with the “piracy” category what is another kind of copyright infringement.
  • The application of “patching” software itself is a way to evade the protection used to create barriers for copyright infringements, so such actions are a separate copyright infringement whether a person is an author or just a user of the “patching” software.
  • Developing, distributing, and selling “patching” software is also a crime (361-1 CC of Ukraine).

But there are also exceptions when you, as a legal user of the software, might modify it without insulting any copyrights. According to the Copyright Law, you must comply with the following:

  • You have purchased a licensed copy of the program;
  • You need to modify the content to ensure the program’s functioning on your devices according to its intended function (including bug-fixing if the license does not prohibit it);
  • Your actions must not harm the program usage and violate copyrights.”

Mykhailo Yudin thinks that this court decision will not necessarily evolve in a systematical work approach of authorities. Primarily because such violations are complex to discover if a person, for example, doesn’t post ads and only uses pirated software. Otherwise, now most games are connected to servers under the control of the rightsholder, so they can better find “patched” consoles and pirated software that are the reason to issue a lawsuit.