There possession of non-original software It cannot always be classified as an offence and lead to a conviction.
The principle has often been established by the Courts but lacked authoritative endorsement from the Supreme Court of Cassation.
The Court of Cassation in a ruling at the end of June 2017, on appeal by a software protection lawyer, has annulled, with referral, the conviction against a person accused of having possessed 82 computer programs illegally duplicated.
There Court of Cassation he considered that “Article 171-ter, paragraph 2, letter a) of Law No. 633 of 1941 punishes, as far as it is relevant here, anyone who “reproduces” or “duplicates” more than fifty copies or specimens of works protected by copyright and related rights. In order for the criminal offence in question to be constituted, it is therefore necessary that the quantitative threshold of 50 copies of works protected by copyright that have been illegally duplicated be exceeded. In this specific case, the Court of Appeal he stated that, since 82 media, including CDs and DVDs, containing duplicate computer programs had been found, the crime should be considered peacefully completed.”
But, continues the Court of Cassation "” 64-ter, paragraph 2 of law no. 633 of 1941, grants, “to anyone who has the right to use a copy of the computer program”, the right “to make a backup copy of the program, if such a copy is necessary for use”.
The appellant had in fact documented that in a few cases there were (photocopies) of some licenses.
Therefore, "From another, related perspective, the contested sentence did not adequately specify, despite the objections raised during the appeal, how many and which programs, contained in the seized media, were not covered by copyright, also in light of what was reported, at the hearing of 07/05/2012, by the witness, according to whom it had not been verified whether, among the programs subject to the investigation, there were actually freeware."”
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