"Vkontakte" fined pirated content for 220 thousand rubles

The battle of the social network "Vkontakte" with record companies in the first round ended in victory for the latter. The court of first instance - the Arbitration Court of St. Petersburg and the Leningrad Region - found OOO Vkontakte guilty of violating the intellectual property rights of SBA Production and SBA Music Publishing (Gala Records group of companies) on the composition of the Infiniti group and the singer Maksim. The court ordered Vkontakte to pay compensation in the amount of 220,000 rubles, partially satisfying the claim. The rightholders asked about 1 million.

Apparently, this may be the first time that Vkontakte pays for illegal content on its servers. A long trial with VGTRK, which began in 2008, ended up with the annulment of the decision to pay compensation.

Protection line "Vkontakte" was based on the fact that pirated content was posted by users themselves without the knowledge of the administration of "Vkontakte". However, the court did not heed the arguments of the defense and found the social network guilty of "reproducing and bringing the compositions to the public on its website." The specific wording of the conviction will soon be published here as part of the reasoning part of the court decision.

Gala Records deputy director general Olga Kim has no doubts about the fairness of the sentence. In an interview with Vedomosti, she explained that there are a lot of unlicensed content on Vkontakte servers, and users themselves cannot delete it: they can only delete the link to the song from their page, but the pirated file itself is stored on the server and is accessible to others.
')
Based on the ruling of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 6722/11 dated November 1, 2011 in the case of ifolder, the owners of file sharing services and social networks are responsible for unlicensed content, and if they do not take preventive measures against downloading illegal content, they themselves initiate downloading it, create technological conditions for copyright infringement or passively refer to infringements. According to Olga Kim, the social network "Vkontakte" violated all these conditions specified in the decision of the Supreme Arbitration Court.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 6722/11 dated November 1, 2011

The courts should take into account the degree of involvement of the provider in the process of transferring, storing and processing information, the ability to control and change its content. The provider is not responsible for the information transmitted, if he does not initiate its transfer, does not select the recipient of information, does not affect its integrity, and also takes preventive measures to prevent the use of exclusive rights objects without the consent of the copyright holder.

In this regard, when considering similar cases, the courts need to check: whether the provider received profit from activities related to the use of the exclusive rights of other entities, which were carried out by persons using the services of this provider; whether restrictions have been placed on the amount of information posted, its availability to an indefinite number of users, the user agreement’s obligation to comply with the laws of the Russian Federation when posting content and the provider’s unconditional right to delete illegal content; the lack of technological conditions (programs) that contribute to the violation of exclusive rights, as well as the presence of special effective programs to prevent, track or delete placed counterfeit works.

Courts should also evaluate the provider's actions to remove, blocking disputed content or the intruder’s access to the site when receiving notice from the copyright holder of the fact of infringement of exclusive rights, as well as in the event of a different opportunity to learn (including from wide discussion in the media) about using its Internet -resource in violation of the exclusive rights of others. In the absence of the provider for a reasonable period of action to curb such violations or in the case of his passive behavior, demonstrative and public removal from the content of the content, the court may recognize the provider’s fault in the offense and bring him to justice.

Considering the modern development of the Internet, such a legal position can also be applied in bringing to responsibility the owners of social and file-sharing Internet resources.