May 15, 2015 at 08:08Copyright infringement dispute
- Tutorial
We continue the selection of judicial practice on the topic of IT business. Today we will consider the lawsuit against the owner of the Internet platform for the sale of software and content.
The plaintiff appealed to the court to recover compensation for violation of exclusive rights to 21 photographic works and a ban on their use by the defendant. The defendant was the hosting administrator, who, according to the plaintiff, illegally posted on his website a proposal to sell an electronic version of the plaintiff’s book, in which controversial photographs were posted.
By the decision of the court of first instance, the claims were partially satisfied, by the decision of the court of appeal the court decision was changed, namely, the amount of compensation was increased. The Federal Arbitration Court of the Moscow District upheld the decision of the court of appeal.
By a resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation, all of these decisions were canceled, and the case was sent for a new consideration. A new court decision denied the lawsuit. The Court of Appeal upheld this decision.
This is such a long story, because the defendant was not easy. Arguments and comments under the cut.
1. Compensation shall be recoverable from the person who violated the exclusive right to use the work, if it does not prove the absence of guilt in this violation (that is, if the degree of care and prudence required of it by the nature of the obligation and the terms of the turnover, it did not take all measures for the proper fulfillment of the obligation).
2. According to the legal position of the Supreme Arbitration Court of the Russian Federation set forth in Resolution No. 10962/08 of 23.12.2008 on the conditions for applying liability measures to the hosting provider, the courts should take into account the degree of the provider’s involvement in the process of transmission, storage and processing of information, the ability to control and change its content .
The provider is not responsible for the transmitted information if it does not initiate its transfer, does not select the recipient of the information, does not affect its integrity, and also takes preventive measures to prevent the use of objects of exclusive rights without the consent of the copyright holder.
3. When considering cases of violation of exclusive rights by owners of social and file-sharing Internet resources, the courts must check:
a) if the provider received profit from activities related to the use of the exclusive rights of other entities that were carried out by persons using the services of this provider;
b) whether there are restrictions on the amount of information posted, its availability for an indefinite number of users;
c) the presence in the user agreement of the user's obligation to comply with the legislation of the Russian Federation when posting content and the unconditional right of the provider to delete the illegally posted content;
d) the lack of technological conditions (programs) that contribute to the violation of exclusive rights, as well as the availability of special effective programs to prevent, track or delete posted counterfeit works;
e) the provider’s actions to remove, block contentious content or access to the site by the violator upon receipt of a notice from the copyright holder about the fact of violation of exclusive rights, as well as in case of another opportunity to find out (including from a wide discussion in the media) about the use of his Internet resource in violation exclusive rights of others.
If the provider does not take action within a reasonable time to stop such violations or if it is passive, demonstratively or publicly removes the content from the content, the court may admit the provider’s guilt.
4. The defendant is not a person distributing works, making them publicly available or otherwise performing actions in relation to the works.
The works were uploaded to the site by users on their own. The defendant did not initiate their download and was not involved in the download process, did not affect the integrity and content of the downloaded works. In this regard, the defendant is not a violator of exclusive rights, which excludes his liability.
In addition, the defendant did not know and could not know about the availability of works on the site. The plaintiff did not provide information on the ownership of the rights to photographs, and the discovery of the photograph was not reported.
The defendant showed a sufficient degree of care and discretion and conscientiously took all necessary measures to comply with the legislation on the protection of intellectual property, in particular, after the discovery of the works in question, they were deleted, while re-loading of materials completely identical to the works was impossible.
1. The burden of proof of lack of guilt lies with the person who committed a violation of exclusive rights. The placement of controversial content by a third party does not automatically eliminate the responsibility of the owner of the resource and provider.
2. The establishment of the guilt of the provider as an information intermediary is largely determined by its behavior, namely, the measures that it took to prevent a violation at the level of user agreement, organizational and technical means of detecting violations, as well as to eliminate the detected violation.
For the role of the User Agreement in resolving various conflicts, see the article How to create a user agreement with your own hands .
We recently talked about new requirements for pre-trial dispute resolution in a note.Changes to copyright protection on the Internet .
The ruling of the Ninth Arbitration Court of Appeal in case No. A40-75669 / 2008 .
The plaintiff appealed to the court to recover compensation for violation of exclusive rights to 21 photographic works and a ban on their use by the defendant. The defendant was the hosting administrator, who, according to the plaintiff, illegally posted on his website a proposal to sell an electronic version of the plaintiff’s book, in which controversial photographs were posted.
By the decision of the court of first instance, the claims were partially satisfied, by the decision of the court of appeal the court decision was changed, namely, the amount of compensation was increased. The Federal Arbitration Court of the Moscow District upheld the decision of the court of appeal.
By a resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation, all of these decisions were canceled, and the case was sent for a new consideration. A new court decision denied the lawsuit. The Court of Appeal upheld this decision.
This is such a long story, because the defendant was not easy. Arguments and comments under the cut.
Motivation for the final decision
1. Compensation shall be recoverable from the person who violated the exclusive right to use the work, if it does not prove the absence of guilt in this violation (that is, if the degree of care and prudence required of it by the nature of the obligation and the terms of the turnover, it did not take all measures for the proper fulfillment of the obligation).
2. According to the legal position of the Supreme Arbitration Court of the Russian Federation set forth in Resolution No. 10962/08 of 23.12.2008 on the conditions for applying liability measures to the hosting provider, the courts should take into account the degree of the provider’s involvement in the process of transmission, storage and processing of information, the ability to control and change its content .
The provider is not responsible for the transmitted information if it does not initiate its transfer, does not select the recipient of the information, does not affect its integrity, and also takes preventive measures to prevent the use of objects of exclusive rights without the consent of the copyright holder.
3. When considering cases of violation of exclusive rights by owners of social and file-sharing Internet resources, the courts must check:
a) if the provider received profit from activities related to the use of the exclusive rights of other entities that were carried out by persons using the services of this provider;
b) whether there are restrictions on the amount of information posted, its availability for an indefinite number of users;
c) the presence in the user agreement of the user's obligation to comply with the legislation of the Russian Federation when posting content and the unconditional right of the provider to delete the illegally posted content;
d) the lack of technological conditions (programs) that contribute to the violation of exclusive rights, as well as the availability of special effective programs to prevent, track or delete posted counterfeit works;
e) the provider’s actions to remove, block contentious content or access to the site by the violator upon receipt of a notice from the copyright holder about the fact of violation of exclusive rights, as well as in case of another opportunity to find out (including from a wide discussion in the media) about the use of his Internet resource in violation exclusive rights of others.
If the provider does not take action within a reasonable time to stop such violations or if it is passive, demonstratively or publicly removes the content from the content, the court may admit the provider’s guilt.
4. The defendant is not a person distributing works, making them publicly available or otherwise performing actions in relation to the works.
The works were uploaded to the site by users on their own. The defendant did not initiate their download and was not involved in the download process, did not affect the integrity and content of the downloaded works. In this regard, the defendant is not a violator of exclusive rights, which excludes his liability.
In addition, the defendant did not know and could not know about the availability of works on the site. The plaintiff did not provide information on the ownership of the rights to photographs, and the discovery of the photograph was not reported.
The defendant showed a sufficient degree of care and discretion and conscientiously took all necessary measures to comply with the legislation on the protection of intellectual property, in particular, after the discovery of the works in question, they were deleted, while re-loading of materials completely identical to the works was impossible.
Case Comments
1. The burden of proof of lack of guilt lies with the person who committed a violation of exclusive rights. The placement of controversial content by a third party does not automatically eliminate the responsibility of the owner of the resource and provider.
2. The establishment of the guilt of the provider as an information intermediary is largely determined by its behavior, namely, the measures that it took to prevent a violation at the level of user agreement, organizational and technical means of detecting violations, as well as to eliminate the detected violation.
For the role of the User Agreement in resolving various conflicts, see the article How to create a user agreement with your own hands .
We recently talked about new requirements for pre-trial dispute resolution in a note.Changes to copyright protection on the Internet .
Judgment
The ruling of the Ninth Arbitration Court of Appeal in case No. A40-75669 / 2008 .