The Nothing

 

VKontakte, the Russia’s most popular internet site and a clone of Facebook, has lost $30,000 in a law suit raised by All-Russia State Television and Radio Broadcasting Company (VGTRK). For the social network with more than 70 million registered users the loss in money terms is negligible; yet the damage in business terms may well be colossal.

In 2008 VGTRK, the state media leviathan, discovered copies of its movies on the VKontakte’s site which had been uploaded by users. The company sued and, after several setbacks, won. ‘According to the court’s logic,’ says the VKontakte CEO Pavel Durov, ‘the copyright owners can shut down any project by uploading their content and then raising legal actions, without giving prior notice to the resource.’

And that is exactly the point. If the decision is right, and it probably is, social networks in Russia – all those home-bred youtubes, flickrs or myspaces – are in deep trouble.

Russian legal community, it appears, is divided over the ruling. Some say that the decision is right, others that courts, as a matter of common sense or international solidarity, must follow the ‘notice and takedown’ approach, common elsewhere but Russia.

Yet the problem is psychological, not legal. It is hard to admit that Russian law on copyright, as the Internet is concerned, is just that – old. The legislator must interfere.

Unlike the US, with its Online Copyright Liability Limitation Act, or Europe, with its Electronic Commerce Directive, Russia has not implemented the ‘safe harbour’ rules that protect internet companies from liability for content uploaded to their servers by the unorganised army of users.

Without such defences Russian law - the pre-Internet law that is - is loose, and any Web 2.0 company is left aloft in a legal emptiness, the Nothing that can destroy this new world.

 

August 25, 2010
photo: artifika - Fotolia.com

 

 


THE DECISION IS LIKELY TO BE REVERSED
TEXT: Anton Malginov, partner & Ludmila Baleevskikh, lawyer - Muranov, Chernyakov & Partners

Unlike the US Liability Limitation Act, Russian law does not have ‘safe harbour’ rules. Together with the lack of uniform judicial practice in resolving Internet related disputes and the formal approach of Russian courts a situation has arisen like the one involving the social network VKontakte. The company was fined when one of its registered users uploaded unlicensed content, thus violating VGTRK’s copyright. VGTRK then chose to go directly to court without any prior warning about the illegality of the content.

A significant number of sites, including VKontakte, allows users to post information (the so-called «user generated content» (UGC)) without any verification of its contents by the site administrator.

Moreover, the site is designed and operated so that its administrators cannot keep track of every action of every user or check whether they violated someone's copyright when downloading some games, video, audio and etc.

The site simply creates the technical means for its users to upload a certain amount of information independently (without the administrator of this site being involved).

From this point of view it would be justifiable to follow international practice that as a general rule the user who uploaded the infringed content is liable – s/he becomes aware of such liability from the user agreement published on the site. The site administrator should only be liable if he had already been informed that certain information on the site was posted illegally and if he had not taken any action to edit or delete this information from the site.

This approach has come into practice in Russia too. It is partially reflected in Resolution № 16 of the Plenum of the Supreme Court ‘On the practice application by courts of law ‘On Media’’ of June 15, 2010.

However, not all Russian courts follow this approach. A striking example of this is the dispute between VGTRK and ‘VKontakte’. The Appellate Court in St. Petersburg rules that because the company ‘VKontakte’ as the owner of the site ‘VKontakte’ is not, strictly speaking, an internet service provider, it is responsible for the content posted on its servers.

It appears that the court’s approach was too formal, without considering the technical specialities of the site and the developing case law in this area. It is likely, then, that the decision will be reversed in higher courts.

 

 

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