The Russian Interior ministry announced that a criminal case has been opened against a 26 year-old Muscovite for having “replicated and disseminated” 18 copyrighted music recordings from his personal page on Vkontakte.ru. This followed a complaint from Nikitin, the Russian music company that owns the rights.
With over 110 million user profiles, Vkontakte.ru is the leading social network in Russian-speaking countries. It is partially owned by Mail.ru Group (formerly DST), which went public on the London stock exchange in October, 2010.
According to the police investigation, the files were downloaded by other users 200,000 times with a financial loss estimated at 108,000 rubles ($3,600). According to Russian criminal code, the incriminated user risks a potential fine of 200,000 rubles ($6,667) and a prison sentence of up to 2 years in the event that financial losses to the owner of the music exceeds 50,000 rubles ($1,667).
The problem with file sharing of copyrighted content is even more acute in Russia than in many other countries. In an open letter of October, 2010, Vkontakte and other key Internet players expressed their readiness to delete litigious copyrighted content from their servers upon demand from copyright owners. A similar position was expressed in early January, 2011, by Russian Minister of Communications and Mass Media Igor Shchegolev. He declared that only users should be liable for the content they upload or share, not the host until it receives a request from the owner of copyrighted material.
In the present case, this approach did not work. While Vkontakte acknowledged having received such a demand from Nikitin, it claimed the music firm failed to prove its ownership claims over the litigious content. Nikitin, however, declared that Vkontakte’s passivity on the matter left no other choice but to report the matter to the authorities. Going beyond compensation for lost revenues, the firm stated it aimed at forcing Internet companies to pay for the use of copyrighted content on their sites.
Nikitin’s complaint has created a precedent in Russian legal proceedings and is likely to be followed by a number of others from the owners of copyrighted content. The Russian Association of TV and Movie Producers, an assembly of 24 companies with intellectual property and content copyright ownership has recently demanded that Internet companies themselves monitor the content on their sites and delete them whenever they encountered copyright violations. The content owners in the Association threatened to bring these cases to court should Internet companies fail to offer a satisfactory solution.
As of Friday morning, Nikitin’s website was inaccessible, hit by a DDoS attack, according to the firm, as quoted by RIA Novosti.
Expert commentary
Special to EWDN by Anna Gutnikova, Ph. D.
Russian legislation protects copyright regardless of the way such copyrighted material is used. Any use of copyrighted materials which is not legally acknowledged by the copyright owner, including replication in any form, a record in computer memory, publication and dissemination in any form, is a violation of copyright. This violation entails liability in accordance with both the Russian Civil and Criminal Codes. Russian legislation in fact provides the same rights to copyright holders as legislation in European countries and the US.
These rules, however, are empty words if copyright violators are not subject to the process of law. In this, the Russian Federation still lags behind western countries. Russian law enforcement practice still hasn’t developed clear legal algorithms for bringing Internet copyright violators to court. Russian law-enforcement agencies simply don’t know what kind of evidence is sufficient to prove the fact of copyright violation on the Internet and who is ultimately responsible for watching over Internet content or social networks for questionable materials or outright piracy.
The attempt to charge an individual user on the VKontakte social network with criminal liability is just the fist step in the formation of the law enforcement practice. This first step will serve as the first stage of evolution of the current situation with Internet piracy only if in this criminal trial clear principles for the collection of evidence and distribution of liability between users and owners of website content will be formed.
Western players and copyright owners at risk of copyright violation on the Internet are in the same position as their Russian counterparts. This is why foreign copyright holders should be equally interested in development of Russian law enforcement practice concerning cases of copyright violation on the Internet.
• Anna Gutnikova, 32, is a leading Russian lawyer specializing in intellectual property rights and Internet law. She took part in “Electronic Russia 2002-2010,” a Russian Federal Program focused on the creation of an ‘electronic government’ in Russia. Ms Gutnikova was a coauthor of recent Russian Federal legislation “On the transfer of rights for single technologies” and other legislation concerning intellectual property rights and IT. Her contributions have been influential in the reform of tax legislation for IT business. Ms Gutnikova is also an expert and practicing lawyer on a wide range of issues in Russian civil law, including company and contract law, financial and tax law and labor law. She teaches financial law at the Banking Institute of the Higher School of Economics in Moscow. She is currently the Director of Institute for legal-regulatory issues at the Higher School of Economics, a graduate of the faculty of law at MGU, where she also holds a PhD in law.
