Collections of court decisions. Software and courts

    This material highlights interesting cases from the Russian judicial practice related to software: situations where there was plagiarism of the source code, when business entities neglected the terms of licensing agreements of proprietary software and used “pirated” copies of programs and some others. I'll start with the most interesting:

    1. Plagiarism of program code

    a. OpenSky's 2-vs Aeronavigator

    Date of the decision: 14.03.2011
    Link to solution: sudact.ru/arbitral/doc/ZluOeHnBykQd
    business bottom line: The plaintiff (JSC "Regional Information Center" Pulkovo ") - owner of the program" OpenSky's, 2 " part of which is the Alerts module. Defendant (LLC “Aeronavigator”) - copyright holder of the Meridian program.
    Both copyright holders have certificates of state registration of their computer programs. The authors of the OpenSky-2 program are the authors who created the program as part of their job duties at the Pulkovo Research and Development Center, including citizen Sorokin SA, who later transferred to work at Aeronavigator , where he became one of the authors of the Meridian program.
    Expert LLC “Document Management” Borisov E.V. An examination of fragments of the source codes of the OpenSky-2 and Meridian programs was conducted for their degree of identity.
    According to the expert’s conclusion, when analyzing the fragments of the source codes of the OpenSky-2 and Meridian software products, a difference (2 lines) was found in the name of the registry branch used to store settings that determine the functioning of the program, where instead of the \ Software \ RIVC_PULKOVO branch \ AS_RDS (Spp) \ Alerts "used by OpenSky-2, for the same purpose, with the same composition of tags and with the same formats of values ​​stored in them, in the Meridian branch is used the \ Software \ Aeronavigator \ Meridian \ Alerts. "
    As a result of studying fragments of the source codes of the OpenSky-2 program and the Meridian program, it was established that the Meridian program, the rights to which are claimed by Aeronavigator LLC, is completely identical to the OpenSky-2 program, exclusive rights to which belong to OJSC RIVC-Pulkovo ".
    Solution: The actions of the defendant to use the plaintiff’s program by including the source code of the Alerts module, which is part of the OpenSky-2 program, in the Meridian program, as well as providing the source text of the Alerts module for state registration with the Rospatent of the Meridian program »Found to violate the plaintiff's exclusive right.
    Compensation for violation of the exclusive right - 500,000 rubles.
    Note: by decisions of higher authorities (Thirteenth AAS of June 28, 2011 and the Federal Antimonopoly Service of the North-Western District of 10.10.2011) the decision of the court of first instance was left unchanged.

    b. QuantaFarm vs Pharmacy-Ural

    Decision date: 10/01/2012 Decision
    link: sudact.ru/arbitral/doc/T8AoSBxnaQJ8
    The essence of the matter: Plaintiff (LLC Aurit) - the copyright holder of the program “Software complex for automation of pharmacy enterprises“ Pharmacy-Ural ”(Software complex“ Pharmacy-Ural ”).
    Defendant (LLC “Kvart”) is the copyright holder of the registered program “System of automation of enterprises engaged in pharmaceutical activities“ Quartfarm ”. Both programs are registered in the state registry of computer programs.
    The authors of the Quartfarm program: Korkunov MA, Fedorov MV, Razboinikov PA - all three worked initially with the plaintiff, then as a result of a conflict with their management they quit OOO Aurit and transferred to LLC Kvart.
    To resolve the issue of whether one program is a revised copy of another program, the court ordered a forensic examination, which was conducted by expert V. Sukhanov (head of the department "Software and Systems" UFU named after the first President of Russia B. N Yeltsin). Expert opinion: the Quartfarm program is not identical to the Pharmacy-Ural program, but the Quartfarm program is the result of processing the Pharmacy-Ural program.
    Solution: Prevent the defendant from distributing or otherwise using the QuartFarm program. The state registration of the QuartFarm program in the registry of computer programs was invalidated as based on false information.
    Compensation for violation of the exclusive right - 500,000 rubles and 14,000 rubles for the costs of the examination.
    Note: In determining the amount of compensation, the court drew attention to the fact that the period of violation of the plaintiff's exclusive right to his program was about six months, therefore the amount of compensation claimed (500,000 rubles) is reasonable and must be collected from the defendant in favor of the plaintiff.

    I draw your readers' attention to the fact that the Definition of the court in the appointment examination (proof of which has been set plagiarism) was established remuneration expert Sukhanov VI - 14,000 rubles (while the plaintiff, having won the process, received compensation in the amount of 500,000 rubles).

    The defendant filed an appeal. In the court of appeal, the case was considered by the 17th AAS. A forensic examination was carried out by experts I. Khokhlov. and Dobryak P.V. Below I propose to get acquainted with the key conclusions from the expert conclusions:

    Khokhlov’s conclusion:
    1. full coincidence of the software platforms (operating system, programming language, libraries and database management system) used in both software products is established
    2. descriptions of the attributes of domains and tables in database structures in many cases have a similar description structure, differing only in attribute names. The main table has the same name - ARTIKUL (the main relationships coincide in them; they also have the same storage methods of documents / documents).
    3. no signs of formal processing were found in the source codes of the programs (conclusion: the programs were rewritten).
    4. a coincidence of unique and not obvious abbreviations was found (conclusion: there was a borrowing from the source code of the Pharmacy-Ural package, which is a key feature of the “processing” process)
    5. the presence of similar windows by which the main functionality of the program is implemented (this also sign of program processing)
    6. When creating QuartFarm, developers used access to the Pharmacy-Ural source texts and used them as a model when developing their own program texts, database structure and screen forms, i.e. processed the Pharmacy-Ural program.

    Kind Conclusion:
    1. the functional similarity of the programs, there are fundamental differences in the architecture of the programs
    2. the QuartFarm code and its database script are much smaller than the Pharmacy-Ural code and script. The existing identical names of the elements are determined by terms from the pharmaceutical industry or from business
    3. The number of similar pieces of code in both programs is insignificant.
    4. There are indirect signs that the programmer has moved from the Pharmacy-Ural development team to the QuartFarm team, which is a normal event in the IT field
    5. The similarity of the appearance of the programs is explained by the same needs of users, there are no obvious signs of borrowing and there are differences in architecture (conclusion: the QuartFarm program was developed independently without processing any parts of the Pharmacy-Ural program).

    According to the court, expert Dobryak P.The. It does not refute the conclusions of expert I. Khokhlov, set out in the research part of the expert opinion, therefore the court of appeal confirmed the correctness of the decision of the trial court.

    2. Unlicensed software

    In 2012, Russian companies violated the mostcopyright for software in such industries as construction, industrial production, architecture and design (namely, they used unlicensed software in their activities), therefore it is not surprising that recently the plaintiffs-leaders in such matters are just the copyright holders of just such specialized software:

    a. Adobe Inc.

    Decision date: 30.11.2010
    Link to solution: kad.arbitr.ru/PdfDocument/5b3ec91b-6b3f-44b8-9e56-04ea540c869c/A40-117808-2010_20101130_Reshenija%20i%20postanovlenija.pdf
    Defendant: Federal State Unitary Enterprise "Rostehinventarizatsiya-Federal BTI"
    ON defendant: Adobe Photoshop CS 8.0 "(15 copies) and" Adobe Photoshop CS 2 9.0 "(14 copies)
    Solution:Compensation - 1,485,497 rubles.
    Note: recognizing the plaintiff’s claim to recover compensation from the defendant, the court in its decision noted the following: “The copyright holder, of course, incurs losses from trade and use of counterfeit goods, as a result, the demand for licensed products decreases, taking into account dumping prices for counterfeit goods.”

    Decision date: 16.03.2012
    Link to solution: sudact.ru/arbitral/doc/MPpENkWU40xZ
    Defendant: OOO "Geo-Pro"
    Software of the defendant: as Adobe Photoshop 8.0 (3 copies.), Adobe Photoshop CS3
    Solution: compensation for copyright infringement - 215 530 rubles.

    Date of decision: 08/01/2012
    Link to decision:sudact.ru/arbitral/doc/iouVjG0LHjUT
    Respondent: Multiplier Center LLC
    Respondent's software: AdobeIllustratorCS2, AdobeIllustratorCS, AdobePhotoshopCS2 (2 copies), AdobeInDesignCS2 (2 copies), AdobeInDesignCS5 AdobeAcrobat 7.0. ”,“ AdobePageMaker 6.5. ”
    Solution: compensation for copyright infringement - 472,739.52 rubles.

    Decision date: 10.10.2012
    Link to the decision: sudact.ru/arbitral/doc/SQbkEsnE3WWn
    Respondent: LLC "Street Magic"
    Respondent's software: "AdobePhotoshopCS3 Extended (v.RUS)", "AdobePhotoshopCS5", "AdobeCS5 MasterCollection"
    Solution: Compensation - 455 132.16 rubles.

    Date of decision: December 11, 2012
    Link to the decision: sudact.ru/arbitral/doc/LdDdL1HU1FHR
    Respondent: Media Center LLC
    Respondent's software: the court decision did not indicate the specific software that was installed by the defendant, but indicated that the total cost of the copies of works for which the rights were violated defendant, is 221 123 RUB. 97 kopecks
    Solution: compensation - 442,247.94 rubles.

    b. Autodesk Inc.

    Date of decision: 08/23/2010
    Link to decision: docs.pravo.ru/document/view/18043090 *
    Respondent: Popyrin A.S.
    Defendant's software: AutoCAD-2008 (2 copies)
    Solution: compensation - 985,677.78 rubles.
    Note:this lawsuit comes from a criminal case against the defendant convicted of crimes under Part 2 of Art. 146 of the Criminal Code in three episodes.

    Date of decision: 04.17.2012
    Link to decision : docs.pravo.ru/document/view/25519171
    Respondent: Usanin M.V.
    Defendant software: AutoCAD 2008 (6 copies)
    Solution: compensation - 327 691 rubles.
    Note: this lawsuit comes from a criminal case against a defendant convicted of crimes under Part 2 of Art. 146 of the Criminal Code in three episodes.

    Date of decision: 01/31/2013
    Link to decision: docs.pravo.ru/document/view/29801736
    Respondent:Energotechmontazh LLC
    Defendant software: Autodesk AutoCAD 2008 (2 copies)
    Solution: compensation for copyright infringement - 411 729.76 rubles.

    Date of the decision: 04/01/2013
    Link to the decision: docs.pravo.ru/document/view/32674796
    Defendant: OJSC Hermes
    Defendant's software : AutoCAD 2011 (2 copies)
    Decision: compensation - 221,286.52 rubles.

    c. Microsoft Corporation

    Date of decision: 01/25/2010
    Link to decision: docs.pravo.ru/document/view/4166682
    Defendant: LLC TC Bezant-S
    Defendant's software:Microsoft Windows XP Professional Service Pack 1 (Rus) (1 copy), Microsoft Windows 2000 Professional Service Pack 4 (Rus) (24 copies), Microsoft Office XP Professional (Rus) (24 copies), Microsoft Office 2003 Professional ( Rus) (1 copy).
    Solution: compensation - 844,464 rubles.

    Date of decision: September 30, 2010
    Link to decision: docs.pravo.ru/document/view/5037089
    Respondent: LLC Metallinvest-Ufa
    Respondent software: Microsoft Windows XP Professional (11 copies), Windows XP Home Edition ”(2 copies),“ Microsoft Office 2002 ”(1 copy),“ Microsoft Office 2003 Professional Rus ”(12 copies).
    Solution: compensation - 411,478.94 rubles.

    Date of decision: 04/26/2012
    Link to the solution: docs.pravo.ru/document/view/26267245
    Respondent: Khasanov A.I.
    Respondent's software: “Microsoft Windows XP Professional” (17 copies), “Microsoft Windows 7 Ultimate” (2 copies), “Microsoft Office 2007 Professional” - (1 copy).
    Solution: compensation - 370,690.32 rubles.

    Date of the decision: 03.03.2013
    Link to the decision: docs.pravo.ru/document/view/32506485
    Respondent: FGU Sevkasprybvod
    Respondent software:Microsoft Windows XP Professional (3 copies), Microsoft Office 2003 Professional (2 copies), Microsoft Office 97 Standard (1 copy), Microsoft Windows 98 Second Edition (7 copies), Microsoft Office 2000 Professional (6 copies) , Microsoft Windows 2000 Professional (1 copy), Microsoft Office Standard 2007 (1 copy).
    Solution: compensation - 391 596.04 rubles.

    d. 1C CJSC

    Decision date: 12/17/2007 Decision
    link : sudact.ru/arbitral/doc/fcW3tDOdl4g4
    Respondent: Rail Trans Transport LLC Defendant
    software: 1C CJSC: 1C: enterprise.7.7 network version "," 1C: Enterprise 7.7 for SQL "(4 copies)," 1C: Taxpayer 7.7. "
    Solution: compensation - 706,350 rubles.

    Date of decision: 05/20/2010
    Link to decision: sudact.ru/arbitral/doc/kUMMppPubE6X
    Respondent: LLC Zherdevsky Plant of Vegetable Oils
    Respondent software: “1C: Enterprise 7.7 for SQL. Integrated supply + ITS USB ”(1 copy),“ 1C: Enterprise 7.7. Management of distributed USB infobases ”(1 copy).
    Solution: compensation - 171,000 rubles.

    Date of decision: 04/09/2012
    Link to decision: sudact.ru/regular/doc/MssEXdX4KjQl
    Respondent: Kondratiev D.N.
    Defendant Software:“1C: Enterprise 7.7 PROF. Integrated delivery + ITS USB ”(1 copy) and“ 1C: Enterprise 7.7 (network version) Integrated delivery + ITS USB ”(3 copies)
    Solution: compensation - 674,000 rubles.
    Note: this lawsuit comes from a criminal case against a defendant convicted of a crime under subsection “c” of part 3 of article 146 of the Criminal Code of the Russian Federation (“through the Internet, without the permission of the possessor, for the purpose of further use and distribution, he acquired unlicensed software products, the copyright of which is 1C,” then he illegally installed this software for 1,500 rubles ”).

    Date of decision: 06/29/2012
    Link to decision: sudact.ru/arbitral/doc/KG0xupgneZY4
    Respondent:Goodwin LLC
    Defendant's software: “1C: Enterprise 7.7 for SQL Complex Supply” (1 copy), “1C: Enterprise 8.0” (1 copy), “1C: Enterprise 8.1” (1 copy).
    Solution: compensation - 288,000 rubles.

    e. The whole "bouquet" of holders in one case

    Date of the decision: 25.02.2009
    Link to solution: sudact.ru/arbitral/doc/035RWUdOsrbC (a reference to the decision of the appellate court)
    Defendant: OOO "Ad libitum were"
    at the defendant's: Excel 2003 AutoCAD-2007, OfficeAccess 2003, OfficePowerPoint 2003, MicrosoftWindowsXPProfessional, Microsoft Office 2003, OfficeOutlook 2003, Autedesk 3dsMax, IllustratorCS3, IllustratorCS2, IllustratorCS, PhotoshopCS2, CS3
    Decision: compensation in favor of Microsoft - 424,935.9 rubles, in favor of Autodesk Inc. in the amount of 1,863,958.68 rubles, in favor of Adobe Systems Incorporated in the amount of 600,887.86 rubles.

    Date of adoption of the decision: 16.11.2009
    Link to the decision: sudact.ru/arbitral/doc/qLqEx1jqX9l
    Respondent: LLC TekhnoNIKOL - Kuban
    PO of the respondent:“Microsoft Windows 2000 professional” (3 copies), “Microsoft Windows XP Professional” (7 copies), “Microsoft Office Professional Edition 2003” (7 copies), “Microsoft Office Professional Edition” (1 copy), “Microsoft Office 2000 premium” (2 copies), “1C: Enterprise 7.7 for SQL Integrated Delivery” (9 copies), “1C Enterprise 7.7 online version” (1 copy), “AutoCAD 2002” (1 copy).
    Solution: compensation in favor of 1C CJSC - 1 602 000 rubles, in favor of Microsoft Corporation - 350 786.46 rubles, in favor of Autodesk Corporation - 408 000 rubles.

    Date of decision: 06/28/2010
    Link to decision: docs.pravo.ru/document/view/10875982
    Respondent: IP Masterkin D.S.
    Defendant Software:“Microsoft Office Professional Edition 2003”, “Microsoft Office 2007 Enterpris SP1”, “Microsoft Office 2007”, “Microsoft Windows XP Professional”, “Microsoft Office 2000 Rus. Advanced Edition ”,“ Microsoft Office 2000 Front Page ”,“ Microsoft Windows 2000 PRO SP4 ”,“ Microsoft Windows Vista (Final), “Microsoft Office XP”, “Microsoft Windows 98 RUS”, “1C: Enterprise 7.7 for SQL. Integrated delivery of ITS USB ”(all this software was on the defendant on CD / DVD discs in the amount of 16 pieces and flash cards in the amount of 3 pieces)
    Solution: compensation in favor of Microsoft - 467 126 rubles, in favor of ZAO 1C - 756 000 rubles.

    Date of the decision: 08.10.2010
    Link to the decision: docs.pravo.ru/document/view/28461838
    Respondent:LK Company LLC
    Defendant software: “Microsoft Windows Vista Business OEM RUS” (1 copy), “1C: Enterprise 7.7 network version Integrated delivery” (2 copy), “Microsoft Office 2003 (professional version release)” (1 copies), “AutoCAD Architecture 2008 ENG” (1 copy), “Microsoft Windows XP Professional RUS” (2 copies).
    Solution: compensation in favor of Microsoft Corporation - 73 199.24 rubles, in favor of Autodesk Inc. - 262 920 rubles, in favor of CJSC 1C - 312 000 rubles.

    Date of the decision: 08.25.2011
    Link to the decision: docs.pravo.ru/document/view/20370611
    Respondent: Municipal Unitary Enterprise of the Tikhoretsky urban settlement of the Tikhoretsky district “Vodokanal”, Tikhoretsk
    PO of the respondent:Microsoft Windows 2000 Professional (4 copies), Microsoft Office 2003 Professional (2 copies), Microsoft Office 2000 SR-1 Premium (1 copy), Microsoft Office 2000 Professional (1 copy) , “1C: Enterprise 7.7 Complex Supply (Network Version)” (3 copies), “1C: Enterprise 7.7 Accounting and Settlement (Network Version)” (3 copies).
    Decision: compensation in favor of CJSC 1C - 918,000 rubles, in favor of Microsoft Corporation - 181,318.60 rubles.

    Date of decision: October 27, 2011
    Link to decision: ras.arbitr.ru/PdfDocument/3186ec94-a4b2-4c83-9fa1-4422395e1a14/%D0%9040-57750-2011__20111027.pdf
    Respondent: LLC LG Electronics RUS-Marketing, LLC “LG Electronics RUS”
    defendant software:Adobe Acrobat 7 Pro, Adobe Acrobat 8 ​​Pro, Adobe Acrobat 9 Pro Extended, Adobe Illustrator CS, Adobe Photoshop CS, Adobe Photoshop CS2, Adobe Photoshop CS3, and CorelDRAW Graphics Suite 12 ”
    Decision: compensation with LLC“ LG Electronics RUS-Marketing ”in favor of the Adobe Systems Incorporated company - 1,180,848.48 rubles, in favor of the Corel corporation - 14,730.04 rubles;
    compensation with LLC LG Electronics RUS in favor of Adobe Systems Incorporated - 2,582,766.86 rubles, in favor of Corel Corporation - 29,460.08 rubles.

    Date of decision: 11/24/2011
    Link to decision: sudact.ru/arbitral/doc/OorPQVpSQtdn
    Defendant: OJSC Zheldorremmash
    Defendant's software:AdobePhotoshop 7.0 (3 copies), AdobeIllustrator 10.0 (1 copy), AdobePagemaker 7.0 (1 copy), AdobeIndesign, 2.0 (1 copy) - based on the results of the first search; AdobePhotoshop of various versions (7 copies), AdobePagemaker (1 copy), AdobeIndesign (1 copy), AdobeIllustrator (1 copy), AdobeAudition (1 copy) - based on the results of the second search;
    “AutoCAD” versions 2002 and 2004 (3 copies),
    “CorelDRAWGraphicsSuite” of various versions (6 copies),
    Solution: compensation in favor of Autodesk Incorporated - 350 042.28 rubles, compensation in favor of Corel Corporation - 137 579.56 rubles, compensation in the benefit of Adobe Systems Incorporated is 948 327.78 rubles.
    Note:in court, the defendant objected to the claims made by the plaintiffs, explaining that the Astrakhan TRZ was included in the structure of Zheldorremmash OJSC as a branch and began to operate from 01.07.2009. On the basis of the deed of transfer dated 02.03.2009, the system units, monitors, computers and other equipment previously owned by Russian Railways were transferred to the ownership of Zheldorremash OJSC. The fact that computer programs (Adobe Photoshop, CorelDRAW, AuCAD) were transmitted in conjunction with the system blocks of Zheldorremmash OJSC in the act was not reflected anywhere and the investigating authorities did not establish it. The defendant did not suspect that its system units had computer software products that were allegedly illegally used by the defendant.
    But the conclusions of the defendant on the lack of his fault in installing software for computers, the copyright holders of which are the plaintiffs, and not evidence of the use of these programs in economic activities, the court considered insolvent.

    Date of the decision: 07/07/2012
    Link to the decision: docs.pravo.ru/document/view/27114629
    Respondent: Sokhieva A.S.
    Defendant’s software: the specific software was not specified in the court decision, it was only indicated that the case involved 11 “DVD” format discs with software.
    Solution: compensation in favor of Microsoft Corporation - 324,492 rubles, in favor of Autodesk Inc. - 751,464 rubles.
    Note:this lawsuit comes from a criminal case against the defendant, found guilty of an offense under subsection “c”, part 3 of article 146 of the Criminal Code (by a court decision, she was sentenced to 1 year in prison (suspended) with a fine in state income of 5,000 rubles).
    Defendant Sokhieva A.S. at the hearing, the claim was recognized, indicating that the plaintiffs are entitled by law to demand monetary compensation from her, however, she does not have the material means to compensate for the harm caused, does not work anywhere, is not an individual entrepreneur, has a dependent minor child, in connection with than he cannot pay the amount claimed by the plaintiffs.
    However, the court awarded the plaintiffs compensation in the amount of more than 1 million rubles.

    Date of decision: 03/01/2013
    Link to the solution: docs.pravo.ru/document/view/32502213
    Respondent: ZAO Art-Manager
    Respondent software: AutoCAD 2005 (1 copy), AutoCAD 2007 (1 copy), Adobe Photoshop CS2 (1 copy)
    Solution: compensation in favor of Autodesk Inc. Corporation - 416,416 rubles, in favor of Adobe Systems Inc. - 57,241.42 rubles.
    Note:The defendant in court argued that software distributions were discovered on his equipment, not the software products themselves. But the court ruled that the defendant’s arguments that the controversial software was not installed by the defendant and was purchased together with a computer that was used from another person, which exempts Art Manager from liability for violation of the plaintiff’s exclusive rights, are based on a mistaken understanding substantive law, since the mere presence of counterfeit copies of programs or distributions of programs on the hard drives of computers belonging to the defendant is an offense regardless of KTA use of this equipment.

    Date of decision: 03/26/2013
    Link to decision:docs.pravo.ru/document/view/32664246
    Respondent: MAU “Department of Architecture and Urban Planning” of the municipality of Temryuk District, Temryuk
    defendant software: “Microsoft Windows XP Professional (2 copies), Microsoft Office 2003 Professional (2 copies. ), 1C: Enterprise 7.7 (network version) Complex delivery (1 copy), Adobe Photoshop CS (1 copy), Adobe Photoshop CS2 (1 copy), AutoCAD 2006 (1 copy), AutoCAD 2009 (1 copy) )
    Decision: compensation in favor of Microsoft Corporation - 175,660.08 rubles, in favor of CJSC 1C - 156,000 rubles, in favor of Corporation Adobe Systems Incorporated - 97,852.14 rubles, in favor of Corporation Autodesk Inc. - 1,187 331.2 rubles.

    Also known are examples of the use of unlicensed software systems.. Compensation for the violation of rights was appropriate:

    Date of the decision: 26.03.2013
    Link to solution: ras.arbitr.ru/PdfDocument/9d136253-7210-4f03-b802-364726641f40/%D0%9060-14190-2011__20121004.pdf
    Plaintiff: LTD " Research and Production Enterprise “Automated Information Systems”
    Respondent: LLC “AIS-group”
    Respondent's software: “Monitoring and registration of power system events” ASNU.411734.002-01.002
    Solution: compensation - 5,200,000 rubles.

    Date of decision: 07/24/2012
    Link to decision: sudact.ru/arbitral/doc/b3LgiXBWMOog
    Claimant: ZAO Helikon Pro
    Respondent:Interregional Distribution Grid Company of the Urals OJSC represented by Permenergo branch of the
    defendant's software: CSE Capital
    Decision: the court approved a settlement agreement, according to which the defendant is obliged to pay the plaintiff 3,400,000 rubles for expanding the scope of the rights to use this program.

    Also, courts often consider cases of violations of the exclusive right to computer games . In this regard, by far the most active plaintiff is NP Edelweiss (to which Akella LLC transferred the exclusive right to its games for 5 years to trust management). Most of all, the organization sued for the following games:

    1) Metro 2033 - see court decisions here , here, here and here

    2) Disciples 3: Renaissance - see court decisions here , here , here and here (and for violating the rights to the second part of this game series - Disiples 2: Rise of the Elves - sued Sorbonne Plus LLC - see court decisions here and here )

    3) Assassin's Creed - see court decisions here and here

    4) Assassin's Creed 2 - see court decision here (infringement of rights to this game was triedalso Brig LLC)

    5) Left 4 Dead 2 - see court decisions here , here , here and here

    Что интересно, НП «Эдельвейс» всякий раз оценивало нанесенный ему ущерб по каждому делу одинаковым размером — 100 000 рублей (возможно, это можно объяснить тем, что истцу не выгодно было требовать компенсацию в двойном размере по причине того, что один диск с игрой и близко не стоит тех денег, которых стоит любой производственный софт от 1С; но также можно предположить, что юристы истца просто штамповали иски один за одним как по кальке). Впрочем, суды снижали размеры компенсаций за нарушение прав истца до 70 000, 50 000, 30 000, а то и до 10 000 рублей. Тем не менее, НП «Эдельвейс» получало в качестве компенсации свою соточку в делах в отношении игр Disciples 3: Renaissance, Assassin’s Creed 2, Left 4 Dead 2.

    3. Незаконная модификация программы

    Date of the decision: 11.03.2009
    Link to the decision: docs.pravo.ru/document/view/1292794
    Claimant: 1C Joint Stock Company
    Respondent: Kostroma Automatic Lines Plant LLC
    Respondent software: 1C: Enterprise 7.7. Comprehensive configuration (network version) ”
    Solution: compensation for illegal use of an intellectual property - 60,316.66 rubles.
    Note:the plaintiff did not dispute the legality of the acquisition of this software by the defendant. The basis for filing a lawsuit was that the launch of the computer program “1C: Assumption 7.7. Integrated configuration (network version) ”contrary to the standard mode stipulated by the developer of 1C CJSC, it became possible as a result of modifying the 1CV7.exhe executable file to bypass the hardware HASP security key. The examination confirmed that the exe file was modified, the court ruled in favor of the plaintiff.

    4. Prohibition by the court of further commercial activities for unlicensed software

    IP Chebotarev A.V.

    IP Chebotarev in the territory of the leased commercial premises sold counterfeit optical discs containing software from Microsoft, Adobe System Incorporated, Korel, Autodesk Inc. and CJSC 1C.
    The total property damage caused to the copyright holders by Chebotarev’s actions to sell counterfeit software discs was determined in the amount of 7 705 653.9 rubles.
    A verdict of August 9, 2012, issued by the Takhtamukaysky District Court of the Republic of Adygea, Chebotarev was found guilty of committing crimes under paragraph "c" of part 3 of Art. 146 and Art. 242 of the Criminal Code and who was sentenced to imprisonment for 3 years 6 months (suspended), as well as a fine (its size is not specified in the accessible sentence).
    Then, by the Decision of the Prikubansky District Court of the city of Krasnodar dated November 28, 2012, Chebotarev’s activity as an individual entrepreneur in the retail trade of technical storage media was terminated.

    Что интересно, согласно тексту решения суда «действиями Чеботарева А.В. нарушаются интересы как Российской Федерации по осуществлению правового регулирования правоотношений в сфере охраны авторских и смежных прав, так и интересы неопределенного круга лиц к которым относятся и правообладатели исключительных прав на результаты интеллектуальной деятельности по распоряжению указанными результатами интеллектуальной деятельности, и потребители указанной продукции, поскольку вред, наносимый контрафактной продукцией, выражается в приобретении потребителями низкокачественного товара, который может отразиться на состоянии здоровья гражданина.» В целом, все понятно в отношении защиты прав правообладателей, но какой конкретный вред здоровью может нанести именно такая контрафактная продукция, лично мне непонятно. А вам?

    5. Compensation for damage to the former employer for the restoration of the software’s performance

    Date of decision: March 11, 2009
    Link to decision: docs.pravo.ru/document/view/23693662
    Claimant: LLC Senal
    Defendant: Belopolsky O.O.
    Defendant's software: A Web application designed to interrogate electricity meters and display their data on a Web site (the specific name of the software is not indicated)
    Solution: to compensate the plaintiff for damage in the amount of 179,097.55 rubles.
    Note:plaintiff - former employer of the defendant. Belopolsky created the specified software, the rights to which belong to the plaintiff. 06/04/2010 Belopolsky was dismissed of his own free will. In connection with his forthcoming dismissal, from his boss he was ordered to transfer his developments, accompanying documentation and source codes for software products completed during working hours, but the source codes and full accompanying documentation were not transferred. The specified data was deleted by Belopolsky from the hard drive of a personal computer (according to him - by accident). To verify this fact, the Commission conducted an examination of the hard drive, and an act was drawn up.
    06/15/2010 this software stopped polling counters. As a result of checking the causes of the inoperability of the program, it turned out that the program only works until the date of June 14, 2010, due to the fact that the software developer intentionally set the specified date as the last date of use of this software product, after June 14, 2010 the software product ceases to carry out its main function.
    Belopolsky O.O. A letter was sent with a proposal to provide Senal LLC with source codes and full supporting documentation reflecting the technical aspects of the developed software, as well as take actions to restore the program’s performance. However, the letter was returned in view of its non-receipt by the addressee. In accordance with the calculation, the costs that Senal LLC will have to incur to restore the program’s performance are 179,097.55 rubles.
    The plaintiff asked to recover the indicated amount from the defendant as compensation for damage. The court granted the plaintiff.

    6. Distribution of one software together with another software - violation of the exclusive right?

    Punto Switcher and Downloader @ Mail.Ru

    An illustration of this section is the ongoing lawsuit between Yandex and the owner of the skan.ru domain name regarding the Punto Switcher program:

    YANDEX LLC has the exclusive right to the Punto Switcher program. IP Balabanov EA, being the administrator of the skan.ru domain name, distributed this program on his website. According to the plaintiff, the defendant’s violation of his rights is expressed in the fact that the defendant distributes this program along with other programs, as Adds programs to the Punto Switcher program, the rights to which belong to third parties (we are talking about the program "Downloader @ Mail.Ru").
    The plaintiff also explains that the defendant distributes the Punto Switcher together with third party programs, thereby benefiting from the plaintiff’s program, because it uses the Punto Switcher to attract the attention of users who download it, and along with it receive a third party program for which the defendant may distribute , receives a fee, which is expressly prohibited by the License Agreement for the use of the program.
    Thus, the plaintiff considered that the defendant violated the provisions of paragraph 4.2 of the License Agreement for his program, according to which the user has no right to reproduce and distribute the program for commercial purposes (including for a fee), including as part of collections of software products, without written consent of the copyright holder.
    Meanwhile, as it is established from the case file, the plaintiff did not prove that the defendant violates his rights in relation to the Punto Switcher program in the form of its distribution together with the programs in the compilation, the rights to which are owned by Mail.ru Limited Liability Company.
    Since the Civil Code of the Russian Federation does not have a legal definition of a collection of software products, and the parties to the license agreement did not establish what is meant by a collection of software products with respect to this agreement, the court concluded that the plaintiff did not prove the use by the defendant of the disputed product in the collection.
    In addition, during the examination, the expert found two options for the installation process of the Punto Switcher program: “Unchecking or not unchecking a checkmark in front of the“ Install toolbar, start pages and search ”item can lead to different behavior of the @ Mail Downloader program .Ru, and therefore, the introduction of various changes to the operating system of the user's computer. "
    Therefore, the trial court came to the conclusion that only the end user resolves the issue of installing additional programs by unchecking or not unchecking the box when downloading the file. At the same time, the defendant, as the owner of the aforementioned site, cannot influence the user's choice, which means that he cannot violate the rights of the plaintiff.
    Solution: Yandex was denied the claim .
    Note: the case will be considered in the court of appeal.

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