kontrafaktam have not found argumentsthe Internet - the provider does not bear responsibility for the handed over information if not it initiates its transfer, and the fact of unapproved use by it of pieces of music by placing on the Internet should be proved the legal owner. To such conclusion the presidium of the Supreme Arbitration Court (YOU) has come. This decision can define an outcome of many judicial proceedings between legal owners and a hosting - providers, in particular, between holding VGTRK and a social network “ In contact “.
this week the text of the decision of presidium YOU under the claim of the legal owner of Open Company " became accessible; the Content and the right “ in the relation a hosting - the provider “ Masterhost “. The December decision the presidium has directed YOU business in the relation of the provider “ Masterhost “ on new consideration in arbitration court of Moscow. The claim was submitted by the legal owner of Open Company “ the Content and the right “ From - that on site Zaycev. net (it is placed on servers “ Masterhosta “) The well-known songs on Evgenie Krylatova`s music " have been placed; the Winged swing “ and “ Fine it is far “ and also “ Alexander “ from a film “ Moscow does not trust tears “ music to which was written by Sergey Nikitin. The claimant has demanded to collect with “ Masterhosta “ 200 thousand rbl. of indemnification. The arbitration court of Moscow in November, 2007 has rejected the claim, having referred that the owner of resource Zaycev. net is Open Company “ Well-aimed “ and to it claims were not shown. But in February, 2008 appeal instance has decided to collect with “ Masterhosta “ 140 thousand rbl. of indemnification. According to appeal court, counterfeit materials were on the server “ Masterhosta “ which could to place itself also the information on the Internet. The court of review has supported the appeal decision.
In the text of the decision of presidium YOU there are essentially important two points, lawyers consider. In - the first, in the decision it is underlined that the provider does not bear responsibility for the handed over information if it does not initiate its transfer, does not choose the addressee of the information and does not influence integrity of the transferred data. In - the second, the fact of unapproved use by the provider of pieces of music by their placing on the Internet should be proved the legal owner. If it is not established that the provider knew or could know about illegal distribution of music it should not prove absence of the fact of use to them of these products.
the decision of presidium YOU is important for the Internet - the market, the partner of legal company Salans Victor Naumov considers. “ as a matter of fact, the court has specified what to demand indemnification about a hosting - providers it is possible, in particular, only after the notice on infringement “ - mister Naumov speaks. As he said, the court has specified that depending on circumstances guilty of infringement can recognise only the one who directly places a counterfeit content, instead of the one who gives technical possibility to load video or music.
the decision of presidium YOU though has recommendatory character, but can affect judiciary practice on such affairs, Victor Naumov considers. “ it can say that courts will adhere to the American model, - mister Naumov argues. - at it collectings are made only from those providers who have been notified on infringement and have not accepted measures “. The lawyer of the legal company “ Uskov and partners “ Vadim Uskov considers that difference of it the decision from others consists that the provider can be punished in case he knows about infringement.
One of the sensational cases in the relation the hosting - the provider can become court between holding VGTRK (TV channels “ Russia “ “ Culture “ “ Sports “ “ to Conduct - 24 “) and a social network “ In contact “. In October, 2008 VGTRK has submitted claims about protection of copyrights against the Internet - companies Mail. ru and site Vkontakte. ru. The essence of claims was reduced to that on both sites any user can zakachat rollers the rights on which belong to manufacturers of a content including VGTRK. Mail. ru has settled the conflict to claimant VGTRK, having concluded the agreement of lawsuit (see “ “ from November, 25th) and having signed the licence contract with VGTRK. With a network “ In contact “ to agree extrajudicially it was not possible.