Vkontakte will be forced to actively deal with piracy

Two weeks ago the Arbitration Court of St. Petersburg and the Leningrad Region found LLC V Kontakte 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 singer Maxim. The court ordered Vkontakte to pay compensation in the amount of 220,000 rubles.

This lawsuit is important not because of the size of the lawsuit, but because it may be the first time that Vkontakte pays for illegal content on its servers - and, perhaps, not the last, if other rightholders follow the example of Gala Records. Therefore, it is important to know the motivation that led the court to make such a decision.

The full text of the decision on the case against Vkontakte, including the reasoning part, is published on the website of the Arbitration Court.

Here are the key fragments from the text of the court decision, the most important is highlighted in bold.
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According to the legal position of the Supreme Arbitration Court of the Russian Federation, set out in December 23, 2008 No. 10962/08, on the conditions for applying measures of responsibility to the hosting provider, the courts should take into account the degree of provider involvement in the process of transferring, storing and processing information, the ability to control and change it 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.

The Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of 01.11.2011 No. 6672/11, posted in full on the website of the Supreme Arbitration Court of the Russian Federation on 10.01.2012, defines the legal position that can be applied when bringing to liability the owners of social and file-sharing Internet resources, according to which, when considering similar cases, the courts need to check whether the provider received a profit from the activities related to the use of the exclusive rights of other entities, which people using the services of this provider, set restrictions on the amount of information placed, its availability for an indefinite number of users, the user agreement in the user agreement to comply with the legislation of the Russian Federation when posting content and the unconditional right of the provider to remove illegal content, the lack of technological conditions (programs ), contributing to the violation of exclusive rights, as well as the presence of special effective programs that allow redupredit, track or remove the counterfeit product placed.

Phonograms of controversial music were openly posted on the pages of users of the site; access to them was provided for all registered users, as evidenced by the protocol of the site inspection dated July 19, 2010, during which the phonograms were discovered by a notary by using the search function . This means that any user who has registered on the site using this function could find the phonograms of musical works mentioned above on the site. The need to register users of the site cannot be considered a restriction on access to the content posted on the site, since the registration procedure is simple and accessible to an indefinite number of persons.

The commission of experts concluded on November 22, 2011 established that the audio files placed on the site are identified, including using the unique digital identifier of the user account that downloaded the file.

The commission concludes with information on which account (from which user’s page) individual audio files were downloaded. There is no evidence that such a load was made by the defendant. Such evidence is missing in other materials of the case.

Based on the above, taking into account the purpose of the information resource and the lack of evidence confirming the implementation (initiation) of downloading (placing) the disputed content directly by the respondent, the court concludes that such content was posted independently by the website users.

The defendant did not receive direct profit from the use of the content, since he did not initiate its placement and did not sell it, did not receive payment for providing the technological possibility of placing content. Evidence to the contrary when considering the present case the court is not represented.

The arguments of the plaintiffs that the defendant’s incomes received by him from the advertisement placed on the site are directly dependent on the content improperly posted on the pages of his site are untenable, since the data confirming such dependence are not presented to the court.

To gain access to the use of the functions of the site vkontakte.ru, the user must register and accept the rules for using the site established by the defendant.

In accordance with these rules, users are prohibited from downloading or otherwise making public (publish on the site) the content of other sites, databases and other results of intellectual activity in the absence of explicit consent of the copyright holder for such actions (clause 6.1.5. ). At the same time, users are warned that except for the cases established by these Rules, as well as the current legislation of the Russian Federation, no content can be copied (reproduced), revised, distributed, displayed in a frame, published, downloaded, transmitted, sold or otherwise. used in whole or in parts without prior permission of the copyright holder, unless the copyright holder expressly consented to the free use of the content by any person (clause 6.1.2. P ravil).

By providing information transfer services, by posting on the website the specified Rules containing the requirements for observing the rights of other users, including intellectual property, the defendant thereby showed the care and diligence that was required of him based on the situation.

Information about the presence on the site of restrictions posted by users of information or special programs to prevent the placement of counterfeit works, the court is not represented.

At the same time, the court also does not have data on the existence of current technological conditions or programs that can check for the purpose of preventing infringement of copyright and related rights of all content posted on the said social website intended for users to communicate on the Internet, taking into account the small size audio file, a huge number of users of the site, the ability to change the information of each of these users in a very short period of time. The duty of a person providing a service on the Internet to monitor information for the storage of which he provides technical capability, as well as an active search for facts or consequences indicating illegal activity, has not been established by law.

Based on the presumption of good faith of users of the site and the specifics of the intellectual property itself, acquiring legal protection due to the fact of its creation and not subject to mandatory registration, the prevention and suppression of infringements of copyright and related rights requires the interaction of the site owner and rightholders, and therefore bringing information about the facts violations of rights holders before the owner of the site is a circumstance affecting the latter’s guilt. In this case, the owner of the site is obliged in the event of receiving a written application from the copyright holder on the violation of intellectual rights as a result of placing content on his website in a timely manner to take the necessary and sufficient measures to curb and eliminate the consequences of violation of intellectual rights. Such measures should exclude the possibility of access to controversial content for any person and ensure the impossibility of posting content of similar content on the site.

As indicated in the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of 01.11.2011 No. 6672/11, the courts should also evaluate the provider's actions for removing, blocking controversial content or the offender's access to the site when receiving notification of the copyright holder of the fact of violation of exclusive rights, as well as a different opportunity to learn (including from a wide discussion in the media) about the use of 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.

As follows from the case, the plaintiffs appealed to the defendant, pointing out that the disputed musical works and their phonograms were posted and made public on his website, in violation of the exclusive copyright and related rights belonging to the plaintiffs. These claims were received by the respondent on 16.08.2010, which is confirmed by notifications on delivery of mail items (ld 9-12, volume 1, ld 8-11, volume 2). The respondent indicates that after receiving these requests, the search function was blocked by the artist’s name and song title.

However , the court regards the actions taken by the defendant as not sufficiently effective in suppressing and eliminating the consequences of the infringement of intellectual rights, since the controversial content remained on the defendant’s site and was accessible to users of the site who had access to personal pages on which relevant links to audio files were posted controversial music . These circumstances are not disputed by the respondent and confirmed by the explanations submitted to them (v. 7, p. 10-14) and copies of the user pages (v. 7, pp. 21-98).

In addition, the phonograms of some works, in particular “My Paradise” and “Love is poison” performed by MakSim, could be found on the respondent’s website using the search function, with only the artist’s name entered into the search box and through the so-called “user community », Which was established during inspections of the site of the defendant, held in court hearings on January 20, 2012 and January 27, 2012.

The arguments that the defendant could not remove the controversial content, since he did not have reliable data that the plaintiffs are indeed the owners, cannot be the basis for relieving the defendant from liability. From the broad discussion in the media, examples of which are presented by the plaintiffs and contained in the case file, the defendant should have been aware that his Internet resource could be used with infringement of the intellectual rights of others, and upon receiving the relevant message from the copyright owner should have taken active actions to suppress the offense, suggesting the good faith of the person who claimed to have intellectual rights. In case of doubt in the credibility of the copyright holder's statement, the respondent had the opportunity to request documents confirming that he has exclusive rights to the results of intellectual activity. The fact that the plaintiffs did not specify a specific address on the site where the controversial content was posted did not prevent the defendant from using the available technological capabilities to search for phonograms of controversial pieces of music and take steps to remove them or block access to them.

Under such circumstances, the court finds the behavior of the defendant after receiving information about the violation of intellectual rights as a result of posting the disputed content on his website passive and admits his guilt in the offense.