Ъ - Arguments for counterfeit

The idea of ​​holding Internet providers accountable for posting counterfeit products on their server tripped on the very first case considered by the Presidium of the Supreme Arbitration Court (YOU). The courts will now have to figure out exactly who owned the site and whether the provider could control its content. This conclusion was made by the Supreme Arbitration Court shortly before the first public discussion of the draft resolution of the plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court, which proposes to recover compensation even from innocent violators of exclusive rights.


Yesterday, the BAC Presidium considered the first case in its practice on the responsibility of a hosting provider for posting counterfeit products on the Internet. The lawsuit was brought against the hosting provider ZAO Masterhost: on its server was the site zaycev.net, known for its ability to download songs for free. The site itself says that “all the music on the server is presented exclusively for trial listening,” however, it immediately contains a reminder that files in rar or doc formats must be reformatted to mp3 after downloading. The dispute arose because zaycev.net posted famous songs to Yevgeny Krylatov’s music “The Winged Swing” and “Beautiful Far Away”, as well as “Alexandra” from the movie “Moscow Doesn't Believe in Tears,” the music for which Sergey wrote Nikitin.

The lawsuit was filed in February 2007 by Content and Law LLC, which in 2005 received exclusive rights to use songs under agreements with composers. The plaintiff demanded to recover 200 thousand rubles from Masterhost. compensation.

The Moscow Arbitration Court rejected the lawsuit on November 8, 2007. The court concluded that the owner of the resource zaycev.net is LLC “Metkom”, to which no claims were made. And "Masterhost", according to the court, provides its subscribers with only technical services for data transfer on the Internet and "does not control the content of information stored, published or distributed by the subscriber using the provided services." But on February 5, the 9th Arbitration Court of Appeal decided to recover 140 thousand rubles from Masterhost. compensation. According to the court of appeal, the counterfeit materials were located on the Masterhost server, which itself could post information on the Internet. The resolution said that Masterhost did not prove that Metkom paid for technical services, but Metkom could not be found.

Yesterday, the Presidium of the Supreme Arbitration Court sent the case for a new trial to the Moscow Arbitration Court. In the ruling on the transfer of the case to the Presidium, the EAC panel of judges examined in detail the technical features of posting information on the Internet. According to YOU ​​judges, the courts have not yet determined who actually owns the site zaycev.net.

The CEO of Content and Law, Andrei Cherkasov, said that he would not have claims to Masterhost if he submitted documents confirming the fact that the servers were leased. Partner at Salans Law Firm, Victor Naumov, believes that the issue of provider’s responsibility for user actions is one of the main problems in regulating the Internet. Recently, courts have offered to recover damages or compensation even from innocent violators, which could involuntarily be the same providers. This situation appeared in the draft resolution of the plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court relating to intellectual property (see Kommersant on November 27). The first public discussion of the document by the BAC Presidium was scheduled for January 15.

Recently, three sites have already received lawsuits from copyright owners, whose users post videos: mail.ru, vkontakte.ru and rambler.ru. Mail.ru settled the conflict with the plaintiff of the All-Russian State Television and Radio Broadcasting Company (TV channels "Russia", "Culture", "Sport", "Vesti-24") by concluding a settlement agreement (see Kommersant on November 25). According to the document, VGTRK agreed to place licensed content on the mail.ru video hosting, and the received advertising revenue will be shared between partners. In the case of vkontakte.ru and rambler.ru, the rightholders want them to conclude similar agreements.

But the very first case, which reached the Presidium of the Supreme Arbitration Court, showed that the practice of holding providers accountable without taking into account their guilt may not work out. “The court will have to deal with it every time whether the provider had the technical ability to control the content of the materials posted on its server,” concludes Pavel Monakov, deputy general director of Law and Consulting. The lawyer of the law company Uskov & Partners, Vadim Uskov, is sure that referring the case to a new trial avoided creating a dangerous precedent: “This allows us to hope that the idea reflected in the draft resolution of the plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court will not be developed.”

The general director of Mediamir company (owns the video hosting smotri.com) Mikhail Gurevich claims that it is almost impossible to control the content hosted on the hosting: “For this, you will have to hire an army of moderators who will check each piece.” In addition, says Mr. Gurevich, site moderators are often unable to determine who owns the rights to certain content. And Victor Naumov said that in developed foreign countries, the provider is usually only liable if he was notified of the violation and did not take any action to eliminate it.

Olga-Pleshanova, Alexander / Malakhov

original www.kommersant.ru/doc.aspx?DocsID=1098929