Who is responsible for user-generated content? Part 2

Hosters against copyright holders

In the first part of the article, we talked about how the courts consider disputes between site owners and owners of rights to those works that are published on them by visitors. If you remember, there we talked about lawsuits against several sites, among which was Vkontakte, the largest domestic social network. When considering a lawsuit against her, the court, although we have a non-case law, referred to the “ legal position ” of the Supreme Arbitration Court in a similar case in which the lawsuit was brought against the hosting company “Masterhost”.



The case in which this position was expressed is in itself of interest, since it is this precedent that has become the main example to be followed in such disputes. So let's dwell on it in more detail.

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Theoretical introduction

But before discussing the case itself, it is worth exploring the general principles of holding accountable “for copyright”. The basis for it is the illegal use of works in the absence of a contract with the copyright holder. The Civil Code of the Russian Federation provides for a number of situations when such use is permitted without a contract, and sometimes even without any deductions to rights holders, but putting it on the network does not apply to such cases, even completely disinterested and “for non-commercial purposes”.



“Use of a work” as applied to the Internet is described in Article 1270 of the Civil Code of the Russian Federation: “Using a work, regardless of whether the relevant actions are performed for profit or without such a goal, is considered, in particular: ... 11) making the work publicly available in this way that any person can access the work from any place and at any time of his choice (to be made public). ”The fundamental point: it follows from the article that by using understand I only "action" by the use of inaction can not be performed.



In one of the previous articles, we wrote about the illegal practice of prosecuting the heads of enterprises in which counterfeit programs are established. Usually law enforcement agencies assume that a manager must monitor compliance with the law in his organization, and if he does not, he may be held accountable. We have already spoken about the illegality of this approach; however, it is worth paying attention to the following detail: in fact, the manager is punished for not fulfilling his non-existent “duties”, that is, for inaction. And the law does not provide for the use of a work by inaction in principle. And the main task of the site owner in such a lawsuit will be to prove that he did not perform any actions with the work. General disputes usually flare up around this.



However, even actions may not entail any responsibility. Such a possibility is described in the Resolution of the Plenum of the Supreme Court “On the issues that have arisen before the courts in civil cases involving the application of copyright and related rights” ( paragraph 13 ): “ A proper defendant in the case of copyright protection and (or) related rights is the person who carried out the action on the use of objects of copyright or related rights in accordance with Articles 15, 16, 37, 38, 40, 41 of the Law of the Russian Federation "On Copyright and Related Rights". For example, a publishing organization that submitted a print layout for a book to a printing house will be the appropriate defendant in the event of a violation of the rights of the author of the work. »The printing house in this case provides only technical assistance when publishing a book. However, if the printing house, on its own initiative, exceeds the ordered circulation of the work, in this case it will be liable for copyright infringement. Although the decree was made under the old law "On Copyright ...", it still remains valid and explanations from it can be guided by the consideration of cases.



The distinction between “ technical assistance ” and full-fledged “ use of a work ” is very conditional, and is not defined either in the law or in its explanations. The decision on what took place in this particular case is left to the discretion of the court. But in practice, decisions are rarely appealed to this clause. And finally, another important excerpt from the Plenum of the Supreme Court, already mentioned ( paragraph 25 ): “The placement of copyright and / or related rights in telecommunications networks, in particular, on the Internet, is the use of these facilities in accordance with clause 2 of article 16 of the above Act. Thus, the recording of a work or an object of related rights in the memory of an electronic computer is used if, on the initiative of the person who made the recording, an indefinite circle of people gets access to this work or an object of related rights. "



This interpretation clarifies a bit what “ bringing to public ” is, and gives the site owner another point of application of force in proving his innocence: to prove that although the counterfeit material is distributed from the site, but not at the initiative of its owner. But here, too, the task comes down to the previous one: it will be necessary to confirm the existence of an unknown user with something. This is what makes the civil procedure different from the criminal one with its presumption of innocence: the parties themselves must prove what they refer to. If some content is distributed from the site, then the involvement of the site owner will be considered established - simply because this is his site. The reverse will have to prove.

"Russian DMCA"?

If we turn to foreign experience, the most interesting example of a regulatory act that regulates the procedure for filing claims for counterfeit content is the American Digital Millenium Copyright Act , the same DMCA that provides for the responsibility for removing copyright protection tools. This is not his only role. The second part of the DMCA is called the “ Online Copyright Infringement Liability Limitation Act ”, that is, the “Law on the Limits of Responsibility for Copyright Violations on the Internet”. It determines the procedure for filing claims by copyright holders to site owners, and their consideration.



Before litigating, the right holder must notify the provider or hoster that counterfeit content is in his area of ​​responsibility. The provider or hoster removes the disputed file and forwards this warning to the user who posted the work. The user can declare that he does not violate anything by sending an appropriate notification to the provider. The provider sends it to the copyright holder, who must file a lawsuit with the user within ten days , and if the lawsuit does not follow, the disputed file is returned back. The provider is thus exempted from liability in cases where he simply transfers, caches, stores or refers to counterfeit, this is the famous principle of "safe harbor". But at the same time, he, in turn, is obliged to take reasonable measures in order to prevent copyright infringement on his resource. This procedure is quite reasonable, it allows you to observe the interests of both the right holders and users.



However, our legislation does not contain anything of the kind. The practice has already spread to warn hosters to remove counterfeit from their sites, but formally nothing prevents rights holders from filing lawsuits immediately. However, a draft amendment to all four parts of the Civil Code was recently published. And among those that are planned to be included in the fourth part, there are norms that are very reminiscent of the order of conflict resolution, which is described in the DMCA. In the Civil Code of the Russian Federation it is planned to introduce article 1253.1 , entitled "Features of the responsibility of a person carrying out activities on transferring material on the Internet or on placing material on this network (Internet provider)":



"one. An Internet provider who transfers material on the Internet is not responsible for intellectual property infringements resulting from such transfer, subject to the following conditions:

1) the Internet provider does not change the specified material after its receipt, with the exception of changes made to ensure the technological process of transfer of material;

2) The Internet provider did not know and should not have known that the use of a relevant intellectual result or means of individualization by the person who initiated the transfer of material containing such result or means of individualization is illegal.

2. An Internet provider who provides services for placing materials on the Internet is not responsible for intellectual property infringements resulting from the placement of material on the Internet by the customer or on his instructions, subject to the following conditions:

1) the Internet provider did not know and should not have known that the use of the relevant result of intellectual activity or the means of individualization contained in such material is illegal;

2) the Internet provider, in case of receipt of a written statement by a third party about the violation of intellectual rights as a result of placing such material on the Internet, promptly took measures aimed at eliminating the consequences of the violation of intellectual rights stipulated by the federal law on Internet providers. ”



This rule is reminiscent of the DMCA, and is almost identical to the procedure for exemption from liability, which is contained in the law "On Information ..." But how will these deputies look at our deputies, who have been repeatedly noted in an effort to protect copyrights at any cost, it is difficult to say . And it’s too early to talk about it: a draft amendment has been promulgated, which has not even been submitted to the Duma as a bill. However, the study of already rendered court decisions shows that, in practice, the hoster, like the owner of the site, may well be exempt from liability for the stored or transmitted content and under current legislation.

"Masterhost" and "hares"

One of the most significant cases in which the question of such responsibility was resolved is a lawsuit to Masterhost CJSC from Content and Law LLC, from which we began the article. “Masterhost”, providing web hosting services for websites, also hosted zaycev.net, from which it was possible to download a bunch of music files uploaded without permission of the copyright holders. "Masterhost" in this case, too, tried to make guilty without fault, for the actions committed by his client. Initially, a lawsuit was filed with the client, however, then the requirements were forwarded to the “Masterkhost”, trying to apply the already mentioned “innocent responsibility”: they tried to condemn the person to whom it was easier to reach. At first, the court of first instance completely dismissed the lawsuit, finding that the Masterhost only provides data transfer services without controlling their content.



In fact, the court formulated a condition of exemption from liability, equivalent to Art. 17 of the Law "On Information ...", which does not apply to copyright infringement. However, the appellate court reversed the decision, admitting that the representatives of Masterhost did not prove that the site was hosted on their servers by a third party, and not by the hoster. In a word, everything follows the usual pattern: it turned out that this mythical user exists, and who should prove his existence (or non-existence). But then, in the process of appealing, it came to the Presidium of the Supreme Arbitration Court, which decided 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." It was said in the resolution about the need to notify the host about copyright infringement that occurs on its servers. It was in this decision that the basic principles of proof for such cases were laid, and it was the reference to him that later appeared in the decision on the suit to “V Kontakte”. Although our right is not a precedent, however, this ruling and the position formulated in it can and should be referred to: the courts take it into account.