Who is responsible for user-generated content?

Site owners against copyright holders

In the last article, we discussed theoretical issues of liability for copyright infringement, and looked at an example of a lawsuit to a hoster who successfully escaped punishment for the actions that his client committed. However, the same problems arise not only with hosters, but also with website creators.



On many sites you can find counterfeit content, which in some cases becomes the subject of lawsuits. If it is laid out by the site owner himself, then in such cases no ambiguities arise. But who should be responsible for what is posted by the user? There is a widespread view that "the owner is solely responsible for what is published on his website." As a rule, it is promoted by "professional plaintiffs" and other propagandists of "tightening the screws" in the field of copyright. However, it is not confirmed in legislation and in judicial practice. In this we now see.

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"In Contact" - "VGTRK"

We will start with the latest “high-profile” case: the claim of the VGTRK company to the V Kontakte social network. Rather, there were as many as two lawsuits: the first because of the movie “Piranha Hunt”, and the second because of “The Island” of Lungin. In both cases, the claim was denied. When making decisions, the court was guided by the explanations of the norms of the fourth part of the Civil Code contained in the Resolution of the Plenary Sessions of the Supreme and Supreme Arbitration Courts “On certain issues arising in connection with the introduction of the fourth part of the Civil Code of the Russian Federation”.



It was adopted after the entry into force of the fourth part of the Civil Code and contains explanations of its provisions. The twenty-third paragraph of the resolution speaks about liability issues for copyright infringement: “By virtue of paragraph 3 of Article 1250 of the Civil Code of the Russian Federation, the absence of guilt of the violator does not relieve him from the obligation to stop the infringement of intellectual rights, and also does not exclude the use of measures aimed at protecting such right Courts should keep in mind that this rule should be applied to methods of protecting relevant rights that are not related to liability measures. ”This clarification excluded the possibility of bringing to the so-called“ innocent responsibility ”against which the Internet public had risen. when the draft was published. In the final version, the clause on “innocent responsibility” was relaxed. All that the plaintiffs could demand from the “contact” is the suppression of the violation of rights, that is, the removal of the film. But by that time he was already removed, so there was nothing to stop.



In addition, the court referred to the “legal position” of the Supreme Arbitration Court, expressed in the Presidium Resolution No. 10962/08 of December 23, 2008, which was to ensure that “the provider is not responsible for the information transmitted, if he does not initiate its transmission, selects the recipient of information, affects the integrity of the transmitted information ". If you have carefully read the previous article, you have learned the quote: yes, it is indeed from the ruling on the “case of Masterhost” and “hares”. As you can see, this “precedent” works quite successfully. According to the court, the plaintiff did not prove that the controversial film was posted on the site by the administration of Vkontakte. The administration itself does not have the technical ability to choose new users and control the contents of their accounts, and is not obliged to do this, and the creation of technical conditions for the exchange of content cannot be considered as a violation of copyright rights in itself.



It was also taken into account the presence on the site of the user agreement, in which the publication of counterfeit materials was prohibited. The court took into account the fact that before filing a lawsuit the representatives of the All-Russian State Television and Radio Broadcasting Company did not consider it necessary to inform the administration of the social network about the violation. As a result, the lawsuit because of "Hunting ..." was denied. But when appealing the higher court reversed the decision: according to the court of appeal, the owners of the social network carry out entrepreneurial activities, and therefore can be held responsible without guilt, on the basis of paragraph 1 of Article. 1064 and p. 3 of Art. 401 GK. In addition, the court decided that these representatives of V Kontakte should have proved that they were not involved in the placement of the film on their website. The court also referred to the regulation of domain registration in the “RU” zone, in which it is the domain owner who is responsible for possible violations of the rights of third parties. In addition, according to the court, Decree No. 10962/08 is not applicable to this case, since it refers to “providers” and “V Kontakte” is not a provider and does not have a license to provide communication services. The result: a million rubles compensation.



But this was not the end of the whole story: a lawsuit was considered at the cassation instance, which left the initial decision to refuse the lawsuit. The question once again came up against “innocent responsibility”: the court decided that it was still impossible to apply it to the social network, because the defendant took all measures depending on him in order to prevent an offense. In this case, the appellate court decided that the existence of the user who posted the film must be proved by the defendant, which he did not do. The court of cassation did not agree with this conclusion. In another case, when filing a lawsuit because of the film “The Island”, the plaintiffs were also denied, and they did not even appeal against this decision.



A fundamentally important issue in these cases is who must prove the existence (or, conversely, non-existence) of the user who posted the counterfeit. And one more important point - although the law does not require notifying the site owner about the “pirates”, the court found the failure to notify with confirmation of the absence of the site owner’s fault, which in turn was one of the grounds for exemption from liability.

How to prove that you are not a camel?

True, the result of such claims is not always positive for the site owner. An example is a lawsuit between Rambler and First Music Publishing House because of the video clip of the Lyapis Trubetskoy group. "Rambler" this claim was lost: the court decided that the defendant did not prove his innocence in placing the clip. Here, the role of PMI appealed to the administration of the Rambler with the request to stop the violation, however, the Rambler did not take any measures to identify the user who posted the material. Well, and finally, an illustrative example of “how it should be”: a lawsuit from LLC Brands to LLC X-Media. The situation is the same: an unknown user has posted a counterfeit on the defendant’s website (realmusic.ru).



It is noteworthy how the issue of confirming the existence of the user who posted the controversial soundtrack was resolved: “From the presented case materials it is clear that the musical work with the text, ... as well as the file with the sound recording and recording of the musical work with the text“ Sister Eliana ”is posted (reproduced ), and then further communicated to the public by a registered user by [e] the name “VladimrV” ... According to the information letter of Multibyte LLC No. 19 of 01.07.2008, 03.10.2007 from 15:28 to 15:57 Moscow time neither, to the IP address 77.220.183.25, the connection was made from the IP address 120.220.177.11, and also that from the IP address 120.220.177.11 to the IP address 77.220.183.25 for the aforementioned period of time, 5.5 MB of information was transmitted. “That is, as an additional confirmation of the fact that someone else downloaded the information to the site, a certificate of the transmitted data from the hosting company was used. Same way out.



From the above, a very important conclusion follows: in spite of the fact that in our legislation there is no description of the order of conflict resolution, similar to the American DMCA, nevertheless, it is already forming spontaneously. It is not at all necessary to regulate it in detail in the law: it is enough to use the general rules on liability that it contains for a long time.