Legal review: a New round of confrontation between “Vkontakte” and copyright owner of the songs of Grigory Leps

Exactly two years ago, the Arbitration court of St. Petersburg and the Leningrad region during the first examination of the case refused to the claimant satisfaction of requirements about compensation of 750 thousand rubles and the removal of the phonograms from the site. The court of appeal supported first. The courts found the circumstances precluding blame and thus, responsibility “Vkontakte” as an information intermediary. The rules on the liability of information intermediaries operating in Russia since August 1, 2013.

In accordance with article 1253.1 of the civil code informational intermediary is responsible only if found guilty and the absence of liability precluding circumstances. The law calls for the case under consideration, two such circumstances. 1) Informational intermediary didnt know and wasnt supposed to know that the use of the relevant results of intellectual activity or means of individualisation contained in such material, is illegal;. 2) Informational intermediary in case of receipt of a written statement by the copyright holder about the violation of intellectual property rights indicating the page of the site and (or) the network address in a network “the Internet” that host such material, promptly took reasonable steps to stop the violation of intellectual property rights.

The list of necessary and sufficient measures and their implementation may be established by law. Thus, as we see from the only “outstanding” judgment in the case, the court first decided that “Vkontakte”, first, neither knew nor should have known of the illegality of the placement of phonograms Leps in the network. This fact, they explained quite simple. The content can place themselves owners, therefore without their circulation network alone cannot determine whether the persons rights to content.

Secondly, “Vkontakte” proved that he took steps to end the violation, as developed digital acoustic fingerprint, which removes the offending posted content. Size chart shoes. The arbitration court of St. Petersburg.

The 13th court of appeals. The court for intellectual rights. The Supreme court of the Russian Federation. The result of consideration of the case for the first time. Refusal in the claim.

14.11.2013. Upheld a decision. 04.03.2014. The case was heard in closed session. Cancelled the previously adopted decision, the case was remanded for a new trial.

04.09.2014. Closed meeting. Does not accept the complaint for review. 30.12.2014. The outcome of the revision.

Satisfy the claim to compensate. 24.07.2015. Closed meeting. Changes the decision. 03.11.2015.

The amount of compensation of 750 000 rubles. Closed meeting. As we can see from the table, turning point in the case came when the details of the struggle were already hidden from the General public. The copyright court found error in the decisions of courts of first instance and appeal and sent the case for retrial.

At new trial, the courts had taken the opposite decision and ordered to pay the social compensation. Unfortunately, on the petition of “Vkontakte” courts consider the matter in closed session, and we have no access to the full texts of the decisions, so we cant accurately judge their motives when you change positions on opposite. From a practical point of view, these solutions are interesting in that they develop criteria for attracting information intermediaries liable for copyright infringement. Unfortunately, as set out in the law formula even the courts themselves are not recognized as clear and defined and, in practice, cause difficulties (for example, the Protocol number 10 meeting of the working group of the Scientific Advisory Council of the Court on intellectual rights from 22.04.2015).

The problem is compounded by the fact that there is no law which should establish the list of necessary and sufficient measures and their implementation for the release of the information intermediary from liability (paragraph 2 paragraph 3 of article 1253.1 of the civil code). It is interesting to note that in the case of liability of the information intermediary will not be able to pass on their losses to the user. The user as social network, is solely responsible.

But copyright holders prefer to sue with information intermediaries, as they are more affordable for suit and a solvent from the viewpoint of real compensation. In “Vkontakte” there are still two chances to review. The next round of the battle of heavyweights will take place at the Court on intellectual rights. Given the fact that this court has already expressed its position, it is unlikely he will change it to the opposite.

But then the social network will remain a chance of winning in the Supreme court. Will continue to monitor developments.


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