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Only in Canada??? Jail for Removing Own Software

   A Provincial Court Judge has found a house designer and builder who
deleted his personal software,  and other information created with it
from a computer, guilty for "Rendering Data Meaningless".  After handing
down his decision, the Judge sentenced the man to one day in jail, and a
$500 fine.
   Charges stemmed from a complaint claiming the independent contractor
(not an employee) had destroyed important company information including
GST tax records, master house pricing lists, and house designs when he
removed his personal software from the computer upon termination of his
contract.
   However under cross examination the complainant admitted that no GST
tax records or master house pricing had been on the computer.  In
addition the complainant could not substantiate his original testimony
in which he stated he had paid for the development of the copyrighted
house designs which had been removed, nor was there a license for their
continued use.  He did, however, point out that the house designs had
been photocopied on his copier, so that should make them his.
   During the 3 day trial the Crown Prosecutor maintained the Law does
not recognize ownership of data in a computer when it comes to its
removal.  He said the Law only recognized the owner of the computer, who
had the right to control all data in it, including software, regardless
of who owned it.
   The computer in question belonged to the company, but had been
provided for the exclusive use of the contractor.  He had copied to it
his own DOS, software, and information he had created, including
copyrighted house designs, to serve as a backup to his own computer at
his home 50 miles away.   He had been paid nothing for providing the
software, nor anything he created with it.
   The Defense maintained that the contractor had simply been provided
with a tool box - the computer without operating system or software -
into which the contractor had put his tools.  Upon completion of his
contract work, the tools were removed and the tool box left for the next
person to use.
   In finding the contractor guilty the Judge did not cite any of the
initial accusations of destroying important information, nor intent to
defraud.  The written decision said the accused had destroyed software
initially copied from his own computer,  and information created with
that software, so he had broken the Law in Canada by "Rendering Data
Meaningless".


   Sound too absurd to be true?  That's what I thought too, but now I
know that in Canada this is the Law.


The Law:
Is section 430(1.1) of the Canadian Criminal Code which reads:
   Everyone commits mischief who wilfully
   (a) destroys or alters data;
   (b) renders data meaningless, useless, or ineffective;
And data is defined as anything that can be installed in a computer.

If the person has an interest (license agreement or copyright) in the
data being destroyed the Law refers to section 429(3) which reads:
   Where it is an offence to destroy or damage anything, the fact that a
   person has a partial interest in what is destroyed or damaged, does
   not prevent him from being guilty of the offense if he caused the
   destruction or damage.
   (b) The fact that a person has a total interest in what is destroyed
   or damaged, does not prevent him from being guilty of the offense, if
   he caused the destruction or damage with intent to defraud.


Further Implications?
Of what may well be the first conviction of this kind in Canada:
  Data (software or inputted information) on leased computers requires
  permission to be granted by the owner of the computers prior to its
  removal by the owner of the data.  Doing so without receiving that
  permission could result in criminal charges.


My Points:

     First, I agree to the with the principle of this Law if it is to
protect  an individual's or company's data from unauthorized removal or
destruction, such as data in a Point of Sale system which can take
years to input and compile.
    But the Law was not particularly well thought out, thus is subject
to abuse.  There will always be unscrupulous people willing to abuse for
personal gain.  I believe it is the responsibility of our lawmakers /
politicians to create laws which prevent this, rather than assist it.

    Second is Intellectual Property Rights.  Just because this is not a
generally well known subject does not disentitle one to the rights of
Copyright Law, or licensing agreements for software, does it?   However
the investigating RCMP officer told me straight that he did not know
about copyright, computers, or licensing agreements, and he did not care
to, at which point I had to phone a lawyer.  Tens of thousands of
taxpayer's dollars have been spent because of this attitude.
    Obviously I can not make this go away -  I spent the first year
hoping for that to happen - so now I must bring attention to not only a
"flawed" law, but also Intellectual Property Rights.


Cast of Characters

   Judge K.A. Andrychuk:  SK Provincial Court Judge who presided over
the Trial at Yorkton SK Canada March 12, April 29, and June 24 of 1996
prior to delivering his decision on August 29.
  
 Barry Stricker:  Crown Prosecutor and creative legal mind behind the
Crown's case, who pointed out to a CBC TV reporter that the Law was
relatively new, and he was not aware of any other applications of it.
(Someone trying to make a name for himself??  Naw, couldn't be that.)

   Paul Smolinski:  Complainant, GM of Yorkton Lumber Supply, a
subsidiary of Newton Enterprise of Winnipeg MB. Canada.  (Large
corporation using the legal system at the taxpayer's expense to obtain
copyrighted work rather than license it?  Surely not so.)

   Cst Foster:  RCMP computer expert who reviewed copyrighted house
designs from evidence (diskettes provided by the accused} on the
complainant's computer prior to the start of the Trial, and forgot to
remove them when he was done.  (Surely it was just an oversight because
the donut joint was going to close, or something like that.)

   Cst Hans Thiessen:  Investigating RCMP officer, an associate of the
complainant through the local flying club.  Also borrowed diskettes from
the complainant to include in pictures of evidence surrendered by the
accused, and related to one of the 3 theft charges which were dismissed.
(He didn't do that because there was no physical evidence for the one
theft charge, did he?  Naw, it was just to make the picture look nicer.)

   Rick Downs:  The accused, house designer and builder from Sturgis SK
Canada, independant contractor convicted for removing personal software,
and copyrighted information, because the computer was not his.   (Seems
to have a problem with a Law which gives the owner of the computer full
control over what an individual can do with Intellectual Property
obtained either by license or copyright.  Aw, not another construction
guy crying in his beer!)


  Please, let me know if you think there is a problem here, or if I am
just crying in my beer?
         Thanx,
         Rick Downs
         Computer Criminal,
         formerly house designer and R2000 builder

 Voice: 306-548-4234
 Fax:   306-548-4351

PS:  To have not broken a Law, I should have left all my software and
copyrighted information on the company computer.   Next I should have
gone home and deleted everything from my own computer to comply with my
licensing agreements (or re-purchased all the software).  Then I should
have hired a lawyer to initiate a law suit to get my copyrighted
property (house designs and software) back from the company.  I don't
know about this?