More disclosed situation with the precedent at the suit Gazety.Ru.
Almost a year ago, in the summer of 2006, a serious conflict arose between the Gazeta.ru web publication and the sports and entertainment portals LiveSport and LiveStream. Gazeta.Ru has accused the owner of these resources of stealing materials, that is, reprinting her articles without permission.
This trial would have been destined to become one of many similar ones (just recall the recent conflict between RBC and Vedomosti ), if it were not for the decision that the Solntsevo District Court of Moscow issued on March 27, 2007: revoke the registration of domain names found in copyright infringement.
How to overtake, how to cut ...
The story began in August 2006, when Gazeta.ru, LLC, filed a petition with the prosecutor’s office for a criminal case against Artur Safonov (Vinogradov), the owner of websites who reprinted Gazeta.Ru notes without the permission of the publisher. The lawsuit was about almost a hundred notes "Gazety.Ru" posted on LiveSport.
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The applicant demanded that the prosecutor's office initiate a criminal case against Safonov under article 146 of the Criminal Code of the Russian Federation (violation of copyright and related rights), as well as compensation from him in the amount of “about 350 thousand” (according to the defendant) rubles. In September, Safonov was summoned to the prosecutor's office. Later it turned out that Gazeta.Ru refused to initiate criminal proceedings in connection with the “absence of corpus delicti in the act”.
Nine months before that - in November 2005 - Gazeta.Ru bought the publishing house "The Secret of the Firm ", and since September 2006, rumors about a sharp tightening of the copyright protection policy began to spread on the Web (for many years, the Gazeta.Ru edited adhered to a common position in the online media environment: “take, but refer”). In December 2006, SF was partially (including Gazeta.Ru) purchased by Kommersant .
The fight against Safonov was resumed in 2007. On February 7, a civil suit was filed against him, this time on behalf of the owners of “Gazety.Ru”, the publishing house “Sekret Firmy”. It said that LiveSport and LiveStream illegally used 98 articles and 41 photos belonging to Gazeta.ru, and, consequently, to SF. As evidence of his rights, the representative of the “Secret of the Firm” submitted a contract dated November 7, 2006, stating that he had acquired the rights to these works. The plaintiffs decided to hold Safonov accountable, referring to the regulations for registering domains in the .ru zone . According to it, for all information posted on the site is the responsibility of the person to whom this domain name is registered. Guided by the law on copyright and related rights, the Federation Council asked the court to recognize the sites of livesport.ru and livestream.ru as instruments of committing an offense, which are supposed to be confiscated in court. In other words, the plaintiffs asked the court to cancel the registration of the domains belonging to the respondent. In addition, the publishing house demanded that the defendant pay compensation in the amount of 1,75320 rubles.
Three people were present at the trial: the lawyer of the claimant, Grigory Medvedev, the defendant Safonov, and, actually, the judge. The defendant’s lawyer could not come to the court - he was busy. As a result, it took the judge less than a minute to render the verdict: guilty, annul, pay 10 thousand rubles.
Points of view
Both sides of the conflict, of course, have the opposite view of what happened. Understanding who is right and who is to blame is the task of the court, so we will simply present the arguments of the parties.
In Gazeta.Ru, Safonov is considered a thief. The official position of “The Secret of the Firm” was voiced in an interview with Lente.Ru by Grigory Medvedev, who believes that Safonov really violated the copyright of “Gazety.Ru”. According to Medvedev, the rules for reprinting materials from Gazety.Ru "never changed, they were always there ... just the respondent was too lazy to follow the link" and read the rules and conditions for using the information. And these rules , says Medvedev, have acted on Gazeta.ru, if not from the moment of their foundation, but “for two years for sure”.
Safonov, who does not admit his guilt, argues with a different opinion and asserts that the information on his websites from “Gazety.Ru” from 2004 to 2006 (this period covers the lawsuit “SF”) was made in full compliance with the rules on reprinting information from this edition: with an indication of the source and a hyperlink to its main page. As the owner of livesport.ru and livestream.ru emphasized, the new rules for the use of Gazety.Ru materials, according to which the written permission of the editorial board is necessary for reprinting articles or their fragments, entered into force after the plaintiff’s first claims and subsequent removal of Gazety.Ru materials. »With LiveSport and LiveStream (this statement is confirmed by other sources: the publication of the new rules, according to the Regnum agency, occurred just in September 2006). Therefore, according to Safonov, the claims of the plaintiff are not substantiated, since at the time of using the materials of “Gazety.Ru” he was guided by the existing rules, and the current plaintiff did not yet have copyrights.
Note that now on the site "Gazety.Ru" there really is a page devoted to the rules of reprinting materials, which clearly indicates that the reprint requires written permission. However, we did not manage to find anything similar to the saved copy of “Gazety.Ru” dated April 2006 posted on the Web.Archive.org website, apart from a warning about the need to refer to “Gazeta.ru” when reprinting materials. However, to establish it is also a matter of court.
Solntsevo precedent
The desire of the "Secrets of the company" to protect the rights to their products is more than understandable. Some excessive aggressiveness in the claim is also understandable: if sites with secondary content want to exist peacefully, they should understand the producers the first time. And it is quite obvious that the case with Livesport is extreme: as Medvedev himself says, in all other similar lawsuits the Federation Council does not require the cancellation of the domain. Moreover, the subsequent courts will most likely correct the decision of Solntsevsky. Especially if Safonov’s lawyer still finds time to come to the meeting.
But all this does not matter. Because defenders of copyright have already done a great and harmful nonsense.
The idea to sue not with the site, but with the owner, equating the domain name to the instrument of the offense, is truly ingenious. A separate word deserves the request of the plaintiff to prohibit the defendant from using domains during the trial, which the court apparently still did not satisfy. The lawyers of “SF” solved the private tactical task brilliantly. However, the strategic consequences of this small victory can be very unpleasant for everyone.
The decision of the Solntsevo court can now be used as a precedent not once or twice, the lawyers of the “Secret of the Firm” were reproached immediately. To which they, it would seem, quite reasonably, notice that the law in Russia is not precedent. Unfortunately, this point of view does not take into account one thing: the incompetence of courts and law enforcement agencies in making decisions on "Internet" cases. Objectively determined, but no less dangerous incompetence. We all periodically have fun, reading the protocols of the “crime scene” inspection, where the external description of the system unit - the “parallelepiped of gray color” - appears, we look at the photos of the Rack and working, but at the same time sealed server “Grani.ru” , we sympathize confiscate the home page and painfully trying to understand what is subject to confiscation. For most users, the network is a funny story, but for the judges - a serious problem. Solving it with the help of attracting experts is not so easy, since “Internet experts” are a special case, they are usually not able to agree among themselves. And therefore, the already existing decision of the Solntsevo Court will be a real gift for the next poor fellow judge, who will have to puzzle over how to confiscate abstraction. So the case law in this area will become a reality de facto and unofficially.
It is far from a fact that the Solntsevsky court understood that the damage caused by the decision to annul domain names many times exceeds the ten thousandth penalty imposed on Safonov. And that the “instrument of an offense” may actually turn out to be a commercial enterprise, apparently no one explained to the court. And what will happen if such a decision is ever made to the address of Gazeta.Ru, for example, according to the recent lawsuit of Vasily Yakemenko ? The domain of the actual price of several million dollars will be lost because of the claim in the amount of one hundred thousand rubles?
But the danger concerns not only violators. The emergence of an “interim measure” in the form of blocking a domain name opens up broad opportunities for trivial raiding. Who prevents any citizen of the Russian Federation from seeing any publication on the RBC website, “Lenta.ru,” “Look”, etc. insulting your own, say, religious feelings? And go to the court at the place of residence, asking the judge to suspend the use of "tools"? Only during the process that the plaintiff is likely to lose. True, each week will cost the respondent a hundred or two thousand dollars of lost profits. Ready scheme for the business of blackmailers. Take, give.
You can fantasize further - in the hope that nothing like this will ever happen. Nevertheless, I would like to ask colleagues from The Secret of the Company to fight for copyright in some less dangerous ways. Thank.
Igor Belkin
Source: Lenta.ru
This trial would have been destined to become one of many similar ones (just recall the recent conflict between RBC and Vedomosti ), if it were not for the decision that the Solntsevo District Court of Moscow issued on March 27, 2007: revoke the registration of domain names found in copyright infringement.
How to overtake, how to cut ...
The story began in August 2006, when Gazeta.ru, LLC, filed a petition with the prosecutor’s office for a criminal case against Artur Safonov (Vinogradov), the owner of websites who reprinted Gazeta.Ru notes without the permission of the publisher. The lawsuit was about almost a hundred notes "Gazety.Ru" posted on LiveSport.
')
The applicant demanded that the prosecutor's office initiate a criminal case against Safonov under article 146 of the Criminal Code of the Russian Federation (violation of copyright and related rights), as well as compensation from him in the amount of “about 350 thousand” (according to the defendant) rubles. In September, Safonov was summoned to the prosecutor's office. Later it turned out that Gazeta.Ru refused to initiate criminal proceedings in connection with the “absence of corpus delicti in the act”.
Nine months before that - in November 2005 - Gazeta.Ru bought the publishing house "The Secret of the Firm ", and since September 2006, rumors about a sharp tightening of the copyright protection policy began to spread on the Web (for many years, the Gazeta.Ru edited adhered to a common position in the online media environment: “take, but refer”). In December 2006, SF was partially (including Gazeta.Ru) purchased by Kommersant .
The fight against Safonov was resumed in 2007. On February 7, a civil suit was filed against him, this time on behalf of the owners of “Gazety.Ru”, the publishing house “Sekret Firmy”. It said that LiveSport and LiveStream illegally used 98 articles and 41 photos belonging to Gazeta.ru, and, consequently, to SF. As evidence of his rights, the representative of the “Secret of the Firm” submitted a contract dated November 7, 2006, stating that he had acquired the rights to these works. The plaintiffs decided to hold Safonov accountable, referring to the regulations for registering domains in the .ru zone . According to it, for all information posted on the site is the responsibility of the person to whom this domain name is registered. Guided by the law on copyright and related rights, the Federation Council asked the court to recognize the sites of livesport.ru and livestream.ru as instruments of committing an offense, which are supposed to be confiscated in court. In other words, the plaintiffs asked the court to cancel the registration of the domains belonging to the respondent. In addition, the publishing house demanded that the defendant pay compensation in the amount of 1,75320 rubles.
Three people were present at the trial: the lawyer of the claimant, Grigory Medvedev, the defendant Safonov, and, actually, the judge. The defendant’s lawyer could not come to the court - he was busy. As a result, it took the judge less than a minute to render the verdict: guilty, annul, pay 10 thousand rubles.
Points of view
Both sides of the conflict, of course, have the opposite view of what happened. Understanding who is right and who is to blame is the task of the court, so we will simply present the arguments of the parties.
In Gazeta.Ru, Safonov is considered a thief. The official position of “The Secret of the Firm” was voiced in an interview with Lente.Ru by Grigory Medvedev, who believes that Safonov really violated the copyright of “Gazety.Ru”. According to Medvedev, the rules for reprinting materials from Gazety.Ru "never changed, they were always there ... just the respondent was too lazy to follow the link" and read the rules and conditions for using the information. And these rules , says Medvedev, have acted on Gazeta.ru, if not from the moment of their foundation, but “for two years for sure”.
Safonov, who does not admit his guilt, argues with a different opinion and asserts that the information on his websites from “Gazety.Ru” from 2004 to 2006 (this period covers the lawsuit “SF”) was made in full compliance with the rules on reprinting information from this edition: with an indication of the source and a hyperlink to its main page. As the owner of livesport.ru and livestream.ru emphasized, the new rules for the use of Gazety.Ru materials, according to which the written permission of the editorial board is necessary for reprinting articles or their fragments, entered into force after the plaintiff’s first claims and subsequent removal of Gazety.Ru materials. »With LiveSport and LiveStream (this statement is confirmed by other sources: the publication of the new rules, according to the Regnum agency, occurred just in September 2006). Therefore, according to Safonov, the claims of the plaintiff are not substantiated, since at the time of using the materials of “Gazety.Ru” he was guided by the existing rules, and the current plaintiff did not yet have copyrights.
Note that now on the site "Gazety.Ru" there really is a page devoted to the rules of reprinting materials, which clearly indicates that the reprint requires written permission. However, we did not manage to find anything similar to the saved copy of “Gazety.Ru” dated April 2006 posted on the Web.Archive.org website, apart from a warning about the need to refer to “Gazeta.ru” when reprinting materials. However, to establish it is also a matter of court.
Solntsevo precedent
The desire of the "Secrets of the company" to protect the rights to their products is more than understandable. Some excessive aggressiveness in the claim is also understandable: if sites with secondary content want to exist peacefully, they should understand the producers the first time. And it is quite obvious that the case with Livesport is extreme: as Medvedev himself says, in all other similar lawsuits the Federation Council does not require the cancellation of the domain. Moreover, the subsequent courts will most likely correct the decision of Solntsevsky. Especially if Safonov’s lawyer still finds time to come to the meeting.
But all this does not matter. Because defenders of copyright have already done a great and harmful nonsense.
The idea to sue not with the site, but with the owner, equating the domain name to the instrument of the offense, is truly ingenious. A separate word deserves the request of the plaintiff to prohibit the defendant from using domains during the trial, which the court apparently still did not satisfy. The lawyers of “SF” solved the private tactical task brilliantly. However, the strategic consequences of this small victory can be very unpleasant for everyone.
The decision of the Solntsevo court can now be used as a precedent not once or twice, the lawyers of the “Secret of the Firm” were reproached immediately. To which they, it would seem, quite reasonably, notice that the law in Russia is not precedent. Unfortunately, this point of view does not take into account one thing: the incompetence of courts and law enforcement agencies in making decisions on "Internet" cases. Objectively determined, but no less dangerous incompetence. We all periodically have fun, reading the protocols of the “crime scene” inspection, where the external description of the system unit - the “parallelepiped of gray color” - appears, we look at the photos of the Rack and working, but at the same time sealed server “Grani.ru” , we sympathize confiscate the home page and painfully trying to understand what is subject to confiscation. For most users, the network is a funny story, but for the judges - a serious problem. Solving it with the help of attracting experts is not so easy, since “Internet experts” are a special case, they are usually not able to agree among themselves. And therefore, the already existing decision of the Solntsevo Court will be a real gift for the next poor fellow judge, who will have to puzzle over how to confiscate abstraction. So the case law in this area will become a reality de facto and unofficially.
It is far from a fact that the Solntsevsky court understood that the damage caused by the decision to annul domain names many times exceeds the ten thousandth penalty imposed on Safonov. And that the “instrument of an offense” may actually turn out to be a commercial enterprise, apparently no one explained to the court. And what will happen if such a decision is ever made to the address of Gazeta.Ru, for example, according to the recent lawsuit of Vasily Yakemenko ? The domain of the actual price of several million dollars will be lost because of the claim in the amount of one hundred thousand rubles?
But the danger concerns not only violators. The emergence of an “interim measure” in the form of blocking a domain name opens up broad opportunities for trivial raiding. Who prevents any citizen of the Russian Federation from seeing any publication on the RBC website, “Lenta.ru,” “Look”, etc. insulting your own, say, religious feelings? And go to the court at the place of residence, asking the judge to suspend the use of "tools"? Only during the process that the plaintiff is likely to lose. True, each week will cost the respondent a hundred or two thousand dollars of lost profits. Ready scheme for the business of blackmailers. Take, give.
You can fantasize further - in the hope that nothing like this will ever happen. Nevertheless, I would like to ask colleagues from The Secret of the Company to fight for copyright in some less dangerous ways. Thank.
Igor Belkin
Source: Lenta.ru
Source: https://habr.com/ru/post/5936/
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