Copyright Infringement Dispute
We continue the selection of judicial practice on the subject of IT business. Today we will consider the case on the claim to the owner of the Internet site for the sale of software and content.
The plaintiff filed a lawsuit seeking compensation for violation of exclusive rights to 21 photographic works and a ban on their use by the defendant. The defendant was the hosting administrator, who, according to the plaintiff, illegally posted on his website an offer to sell the electronic version of the plaintiff’s book in which the controversial photos were posted.
By the decision of the court of first instance, the claims were partially satisfied, by the decision of the appellate court the court decision was changed, namely, the amount of compensation was increased. The Federal Arbitration Court of the Moscow District, the decision of the court of appeal was left unchanged.
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By a decree of the Presidium of the Supreme Arbitration Court of the Russian Federation, all of these decisions were canceled, and the case was sent for a new consideration. A new court decision in the lawsuit denied. The appellate court upheld the decision.
This is such a long story, because the defendant was not a simple one. Arguments and comments under the cut.
1. Compensation shall be recovered from the person who violated the exclusive right to use the work, if it does not prove the absence of his guilt in this violation (i.e. if with the degree of care and diligence that was required of him by the nature of the obligation and the conditions of turnover did not take all measures for the proper performance of the obligation).
2. According to the legal position of the Supreme Court of Arbitration of the Russian Federation set out in Decree No. 10962/08 dated December 23, 2008 on conditions for applying liability measures to a 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 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.
3. When considering cases of infringement of exclusive rights by the owners of social and file-sharing Internet resources, the courts should check:
a) whether the provider received income 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;
b) whether restrictions are placed on the amount of information placed, its availability for an indefinite circle of users;
c) the presence in the user agreement of the obligation of the user to comply with the laws of the Russian Federation when posting content and the unconditional right of the provider to remove illegal content;
d) 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 posted counterfeit works;
e) actions of the provider to remove, blocking disputed content or access of the offender to the site when receiving notification of the copyright holder about the fact of violation of exclusive rights, as well as in the case of another opportunity to learn (including from wide discussion in the media) about using his Internet resource in violation 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 or public removal from the content of the content, the court may recognize the fault of the provider.
4. The respondent is not a person who distributes works, makes them publicly available or otherwise acts in relation to works.
The works were uploaded to the site by users themselves. The defendant did not initiate their loading and was not involved in the loading process, did not affect the integrity and content of the downloaded works. In this regard, the defendant is not a violator of exclusive rights, which excludes his responsibility.
In addition, the defendant did not know and could not know about the presence of works on the site. Information about the ownership of the rights to the photographs by the plaintiff was not provided, the discovery of the photographs was not reported.
The defendant showed a sufficient degree of care and prudence and conscientiously took all necessary measures to comply with legislation on the protection of intellectual property, in particular, after the discovery of the works in question, they were removed, while reloading materials completely identical to works was impossible.
1. The burden of proving the absence of guilt lies on the person who committed the violation of exclusive rights. Placing the disputed content by a third party does not automatically eliminate the owner of the resource and the provider from liability.
2. Establishing the guilt of the provider as an information intermediary is largely determined by his behavior, namely, those measures that he took to prevent a violation at the level of the user agreement, organizational and technical means of identifying violations, as well as eliminate the identified violation.
For the role of the User Agreement in resolving various conflicts, see the article How to make a user agreement with your own hands .
We recently described new requirements for pre-trial dispute resolution in the article Changes in copyright protection on the Internet .
Resolution of the Ninth Arbitration Court of Appeal in case number A40-75669 / 2008 .
The plaintiff filed a lawsuit seeking compensation for violation of exclusive rights to 21 photographic works and a ban on their use by the defendant. The defendant was the hosting administrator, who, according to the plaintiff, illegally posted on his website an offer to sell the electronic version of the plaintiff’s book in which the controversial photos were posted.
By the decision of the court of first instance, the claims were partially satisfied, by the decision of the appellate court the court decision was changed, namely, the amount of compensation was increased. The Federal Arbitration Court of the Moscow District, the decision of the court of appeal was left unchanged.
')
By a decree of the Presidium of the Supreme Arbitration Court of the Russian Federation, all of these decisions were canceled, and the case was sent for a new consideration. A new court decision in the lawsuit denied. The appellate court upheld the decision.
This is such a long story, because the defendant was not a simple one. Arguments and comments under the cut.
Motivation of the final decision
1. Compensation shall be recovered from the person who violated the exclusive right to use the work, if it does not prove the absence of his guilt in this violation (i.e. if with the degree of care and diligence that was required of him by the nature of the obligation and the conditions of turnover did not take all measures for the proper performance of the obligation).
2. According to the legal position of the Supreme Court of Arbitration of the Russian Federation set out in Decree No. 10962/08 dated December 23, 2008 on conditions for applying liability measures to a 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 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.
3. When considering cases of infringement of exclusive rights by the owners of social and file-sharing Internet resources, the courts should check:
a) whether the provider received income 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;
b) whether restrictions are placed on the amount of information placed, its availability for an indefinite circle of users;
c) the presence in the user agreement of the obligation of the user to comply with the laws of the Russian Federation when posting content and the unconditional right of the provider to remove illegal content;
d) 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 posted counterfeit works;
e) actions of the provider to remove, blocking disputed content or access of the offender to the site when receiving notification of the copyright holder about the fact of violation of exclusive rights, as well as in the case of another opportunity to learn (including from wide discussion in the media) about using his Internet resource in violation 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 or public removal from the content of the content, the court may recognize the fault of the provider.
4. The respondent is not a person who distributes works, makes them publicly available or otherwise acts in relation to works.
The works were uploaded to the site by users themselves. The defendant did not initiate their loading and was not involved in the loading process, did not affect the integrity and content of the downloaded works. In this regard, the defendant is not a violator of exclusive rights, which excludes his responsibility.
In addition, the defendant did not know and could not know about the presence of works on the site. Information about the ownership of the rights to the photographs by the plaintiff was not provided, the discovery of the photographs was not reported.
The defendant showed a sufficient degree of care and prudence and conscientiously took all necessary measures to comply with legislation on the protection of intellectual property, in particular, after the discovery of the works in question, they were removed, while reloading materials completely identical to works was impossible.
Comments on the case
1. The burden of proving the absence of guilt lies on the person who committed the violation of exclusive rights. Placing the disputed content by a third party does not automatically eliminate the owner of the resource and the provider from liability.
2. Establishing the guilt of the provider as an information intermediary is largely determined by his behavior, namely, those measures that he took to prevent a violation at the level of the user agreement, organizational and technical means of identifying violations, as well as eliminate the identified violation.
For the role of the User Agreement in resolving various conflicts, see the article How to make a user agreement with your own hands .
We recently described new requirements for pre-trial dispute resolution in the article Changes in copyright protection on the Internet .
Action decision
Resolution of the Ninth Arbitration Court of Appeal in case number A40-75669 / 2008 .
Source: https://habr.com/ru/post/290562/
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