March 29, 2007 at 01:17A more open situation with the precedent in the claim of Gazeta.ru.
Almost a year ago, in the summer of 2006, a serious conflict arose between the Internet newspaper Gazeta.ru and the sports and entertainment portals LiveSport and LiveStream. Gazeta.Ru accused the owner of these resources of stealing materials, that is, reprinting her articles without permission.
This trial would be 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 Solntsevsky District Court of Moscow made on March 27, 2007: to cancel the registration of domain names of sites found in copyright infringement.
How to overtake, how to cut ...
The story began in August 2006, when Gazeta.Ru LLC filed an application with the prosecutor to institute criminal proceedings against Arthur Safonov (Vinogradov), the owner of websites that reprinted Gazeta.Ru notes without permission from the publisher. The lawsuit dealt with almost a hundred notes of Gazeta.Ru posted on LiveSport.
The applicant requested the prosecutor's office to institute criminal proceedings against Safonov under Article 146 of the Criminal Code of the Russian Federation (violation of copyright and related rights), as well as to recover from him compensation 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”.
Nine months earlier - in November 2005 - I bought Gazeta.ruThe Secret Company publishing house , and since September 2006, rumors have circulated on the Web about a sharp tightening of the copyright protection policy (for many years, the Gazeta.Ru editorial board has maintained the position “take, but refer”). In December 2006, the "SF" was in part (including "Gazetu.Ru") purchased by " Kommersant ".
The fight with Safonov resumed in 2007. On February 7, a civil lawsuit was filed against him, this time on behalf of the owners of Gazeta.Ru, Publishing House Secret of the Firm. It stated that LiveSport and LiveStream illegally used 98 articles and 41 photos belonging to Gazeta.Ru, and, consequently, SF. As evidence of his rights, the representative of the "Secret of the Firm" presented an agreement of November 7, 2006, which stated that he had acquired the rights to these works. The plaintiffs decided to call Safonov to account, referring to the rules of domain registration in the zone .ru. According to it, for all the 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, “SF” asked the court to recognize the livesport.ru and livestream.ru sites as tools for 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 defendant. In addition, the publishing house demanded that the defendant pay compensation in the amount of 175320 rubles.
Three people attended the trial: the plaintiff’s lawyer Grigory Medvedev, defendant Safonov and, in fact, the judge. The defendant’s lawyer could not come to court - he was busy. As a result, the judge took less than a minute to reach a verdict: guilty, annul, pay 10 thousand rubles.
Points of view
Both sides of the conflict, of course, have an opposite view of what has happened. Finding out who is right and who is to blame is the task of the court, so we’ll just give the parties arguments.
In "Gazeta.ru" Safonov is considered a thief. In an interview with Lente.ru, the official position of The Firm's Secret was voiced by Grigory Medvedev, who believes that Safonov really violated the copyrights of Gazeta.ru. According to Medvedev, the rules for reprinting materials from Gazeta.ru were “never changed, they were always there ... just the defendant was too lazy to follow the link” and become familiar with the rules and conditions for using the information. And these rules , says Medvedev, acted on Gazeta.Ru, albeit not from the moment they were founded, but "for two years, for sure."
Safonov has a different opinion, who does not admit his guilt and claims that the placement of information from Gazeta.Ru on his websites from 2004 to 2006 (this period covers the lawsuit of SF) was carried out in full accordance with the rules on reprinting information from of this publication: indicating 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 Gazeta.Ru materials, according to which editorial permission is required to reprint articles or fragments thereof, entered into force after the plaintiff’s first complaints and subsequent removal of Gazeta.Ru materials »With LiveSport and LiveStream (this statement is also confirmed from other sources: the publication of new rules, according to Regnum“, occurred just in September 2006). Therefore, Safonov believes that the plaintiff’s claims are not substantiated, since at the time of using Gazeta.Ru materials he was guided by the current rules, and the current plaintiff did not yet own the copyrights.
Note that now there is indeed a page on the Gazeta.Ru website that contains the rules for reprinting materials that explicitly states that a written permission is required for reprinting, however, a saved copy of Gazeta.Ru dated April 2006 posted on the Web.Archive.org website we don’t his like could not be found, except alerts about references to "Gazetu.Ru" At a reprint of materials, however, set this -. the same court case.
Solntsevsky precedent
The desire of the "Firm Secret" to protect the rights to their products is more than understandable. Some excessive aggressiveness in claims is also clear: if sites with secondary content want to exist quietly, they should understand the manufacturers the first time. And it’s quite obvious that the Livesport case is extreme: as Medvedev himself says, in all other similar lawsuits the Federation Council does not require domain cancellation. Moreover, most likely the courts of subsequent instances will correct the decision of Solntsevsky. Especially if Safonov’s lawyer still finds time to come to the meeting.
But it doesn’t matter. Because copyright advocates have already done a great and harmful stupidity.
The idea to sue not with the site, but with the owner, equating the domain name to the instrument of the offense, is truly brilliant. A separate word deserves the plaintiff’s request to ban the defendant from using domains for the duration of the trial, which the court apparently did not satisfy. The lawyers of SF have brilliantly solved a private tactical task. However, the strategic consequences of this small victory can be very unpleasant for everyone.
The fact that the decision of the Solntsevsky court can now be used as a precedent more than once or twice, the lawyers of the "Firm Secret" were reproached immediately. To which they - seemingly 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 from this no less dangerous incompetence. We all periodically have fun reading the protocols of the “crime scene” inspection, which includes an external description of the system unit - the “gray parallelepiped”, we examine the photos of the “Graney.Ru” server that is standing in the rack, but at the same time sealed , and we sympathize with the Abakan courtwho decided to confiscate the homepage and painfully trying to understand what exactly is subject to confiscation. For most netizens, these are funny stories, but for judges, this is a serious problem. It is not so simple to solve it with the help of experts, since “Internet experts” are a special case, they usually are not able to agree among themselves. And therefore, the already existing decision of the Solntsevsky court will be a real gift for the next poor fellow judge who will have to puzzle over how to confiscate the abstraction. So, case law in this area will become a de facto and unofficial reality.
It is far from a fact that the Solntsevsky court understood that the damage caused by the decision to annul the domain names is many times greater than the ten thousand fine sanctioned by Safonov. And that the “instrument of the offense” may actually turn out to be a commercial enterprise, apparently no one has explained to the court. And what will happen if someday such a decision is made in the address of Gazeta.Ru - for example, in the recent lawsuit of Vasily Yakemenko ? Will a domain with an actual price of several million dollars be lost due to a lawsuit worth one hundred thousand rubles?
But the danger concerns not only violators. The emergence of a “security measure” in the form of a domain name lock opens up wide opportunities for trivial raiding. Who is stopping any citizen of the Russian Federation from discerning in any publication on the RBC website, Lenta.ru, Vzglyad, etc. insulting, say, religious feelings? And apply to the court of residence, asking the judge to suspend the use of "tools"? Only for the duration of the process, which the plaintiff is likely to lose. True, each week will cost the defendant a hundred or two thousand dollars of lost profit. Ready-made scheme for the blackmailers business. Take away, give.
You can fantasize further - in the hope that nothing like this will ever happen. Nevertheless, I would like to ask colleagues from the “Firm Secret” to fight for copyrights in some less dangerous ways. Thanks.
Igor Belkin
Source: Lenta.ru
This trial would be 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 Solntsevsky District Court of Moscow made on March 27, 2007: to cancel the registration of domain names of sites found in copyright infringement.
How to overtake, how to cut ...
The story began in August 2006, when Gazeta.Ru LLC filed an application with the prosecutor to institute criminal proceedings against Arthur Safonov (Vinogradov), the owner of websites that reprinted Gazeta.Ru notes without permission from the publisher. The lawsuit dealt with almost a hundred notes of Gazeta.Ru posted on LiveSport.
The applicant requested the prosecutor's office to institute criminal proceedings against Safonov under Article 146 of the Criminal Code of the Russian Federation (violation of copyright and related rights), as well as to recover from him compensation 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”.
Nine months earlier - in November 2005 - I bought Gazeta.ruThe Secret Company publishing house , and since September 2006, rumors have circulated on the Web about a sharp tightening of the copyright protection policy (for many years, the Gazeta.Ru editorial board has maintained the position “take, but refer”). In December 2006, the "SF" was in part (including "Gazetu.Ru") purchased by " Kommersant ".
The fight with Safonov resumed in 2007. On February 7, a civil lawsuit was filed against him, this time on behalf of the owners of Gazeta.Ru, Publishing House Secret of the Firm. It stated that LiveSport and LiveStream illegally used 98 articles and 41 photos belonging to Gazeta.Ru, and, consequently, SF. As evidence of his rights, the representative of the "Secret of the Firm" presented an agreement of November 7, 2006, which stated that he had acquired the rights to these works. The plaintiffs decided to call Safonov to account, referring to the rules of domain registration in the zone .ru. According to it, for all the 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, “SF” asked the court to recognize the livesport.ru and livestream.ru sites as tools for 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 defendant. In addition, the publishing house demanded that the defendant pay compensation in the amount of 175320 rubles.
Three people attended the trial: the plaintiff’s lawyer Grigory Medvedev, defendant Safonov and, in fact, the judge. The defendant’s lawyer could not come to court - he was busy. As a result, the judge took less than a minute to reach a verdict: guilty, annul, pay 10 thousand rubles.
Points of view
Both sides of the conflict, of course, have an opposite view of what has happened. Finding out who is right and who is to blame is the task of the court, so we’ll just give the parties arguments.
In "Gazeta.ru" Safonov is considered a thief. In an interview with Lente.ru, the official position of The Firm's Secret was voiced by Grigory Medvedev, who believes that Safonov really violated the copyrights of Gazeta.ru. According to Medvedev, the rules for reprinting materials from Gazeta.ru were “never changed, they were always there ... just the defendant was too lazy to follow the link” and become familiar with the rules and conditions for using the information. And these rules , says Medvedev, acted on Gazeta.Ru, albeit not from the moment they were founded, but "for two years, for sure."
Safonov has a different opinion, who does not admit his guilt and claims that the placement of information from Gazeta.Ru on his websites from 2004 to 2006 (this period covers the lawsuit of SF) was carried out in full accordance with the rules on reprinting information from of this publication: indicating 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 Gazeta.Ru materials, according to which editorial permission is required to reprint articles or fragments thereof, entered into force after the plaintiff’s first complaints and subsequent removal of Gazeta.Ru materials »With LiveSport and LiveStream (this statement is also confirmed from other sources: the publication of new rules, according to Regnum“, occurred just in September 2006). Therefore, Safonov believes that the plaintiff’s claims are not substantiated, since at the time of using Gazeta.Ru materials he was guided by the current rules, and the current plaintiff did not yet own the copyrights.
Note that now there is indeed a page on the Gazeta.Ru website that contains the rules for reprinting materials that explicitly states that a written permission is required for reprinting, however, a saved copy of Gazeta.Ru dated April 2006 posted on the Web.Archive.org website we don’t his like could not be found, except alerts about references to "Gazetu.Ru" At a reprint of materials, however, set this -. the same court case.
Solntsevsky precedent
The desire of the "Firm Secret" to protect the rights to their products is more than understandable. Some excessive aggressiveness in claims is also clear: if sites with secondary content want to exist quietly, they should understand the manufacturers the first time. And it’s quite obvious that the Livesport case is extreme: as Medvedev himself says, in all other similar lawsuits the Federation Council does not require domain cancellation. Moreover, most likely the courts of subsequent instances will correct the decision of Solntsevsky. Especially if Safonov’s lawyer still finds time to come to the meeting.
But it doesn’t matter. Because copyright advocates have already done a great and harmful stupidity.
The idea to sue not with the site, but with the owner, equating the domain name to the instrument of the offense, is truly brilliant. A separate word deserves the plaintiff’s request to ban the defendant from using domains for the duration of the trial, which the court apparently did not satisfy. The lawyers of SF have brilliantly solved a private tactical task. However, the strategic consequences of this small victory can be very unpleasant for everyone.
The fact that the decision of the Solntsevsky court can now be used as a precedent more than once or twice, the lawyers of the "Firm Secret" were reproached immediately. To which they - seemingly 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 from this no less dangerous incompetence. We all periodically have fun reading the protocols of the “crime scene” inspection, which includes an external description of the system unit - the “gray parallelepiped”, we examine the photos of the “Graney.Ru” server that is standing in the rack, but at the same time sealed , and we sympathize with the Abakan courtwho decided to confiscate the homepage and painfully trying to understand what exactly is subject to confiscation. For most netizens, these are funny stories, but for judges, this is a serious problem. It is not so simple to solve it with the help of experts, since “Internet experts” are a special case, they usually are not able to agree among themselves. And therefore, the already existing decision of the Solntsevsky court will be a real gift for the next poor fellow judge who will have to puzzle over how to confiscate the abstraction. So, case law in this area will become a de facto and unofficial reality.
It is far from a fact that the Solntsevsky court understood that the damage caused by the decision to annul the domain names is many times greater than the ten thousand fine sanctioned by Safonov. And that the “instrument of the offense” may actually turn out to be a commercial enterprise, apparently no one has explained to the court. And what will happen if someday such a decision is made in the address of Gazeta.Ru - for example, in the recent lawsuit of Vasily Yakemenko ? Will a domain with an actual price of several million dollars be lost due to a lawsuit worth one hundred thousand rubles?
But the danger concerns not only violators. The emergence of a “security measure” in the form of a domain name lock opens up wide opportunities for trivial raiding. Who is stopping any citizen of the Russian Federation from discerning in any publication on the RBC website, Lenta.ru, Vzglyad, etc. insulting, say, religious feelings? And apply to the court of residence, asking the judge to suspend the use of "tools"? Only for the duration of the process, which the plaintiff is likely to lose. True, each week will cost the defendant a hundred or two thousand dollars of lost profit. Ready-made scheme for the blackmailers business. Take away, give.
You can fantasize further - in the hope that nothing like this will ever happen. Nevertheless, I would like to ask colleagues from the “Firm Secret” to fight for copyrights in some less dangerous ways. Thanks.
Igor Belkin
Source: Lenta.ru