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“The team was recently visible advising on a number of pharmaceutical cases. Sources agree that the team is “moving in the right direction” and are particularly impressed by its work in the pharmaceutical sector”.

 

What is Wrong with the Fight Against Intellectual Piracy?

27.11.2018

Gadzhimurad Akhmedov, lawyer

Source: Forbes

How do we understand that certain video content is unauthorized? Will the title owners themselves suffer from the fact that their legal content will cease to be found on requests in Yandex, Google and other search engines? In fact, the solution to this problem was invented long time ago.

An anti-piracy memorandum, which was signed by Internet companies and copyright holders 10 months later may become a basis for the new anti-piracy. Or it may not. The problem is that now Yandex and Mail.ru host full versions of pirate videos on their web-pages and do not consider it to be the violation of exclusive rights. At the same time, Google, Yahoo, Rambler and others do not allow this, and another big search engine, Bing.com, in the interface of its web-site demonstrates only Youtube videos referring to the videos from other resources through links.

The conflict between Yandex and Gazprom-Media, which lasted for a long time, demonstrated the essence of the problem very clearly. Yandex agreed to remove links to pirate content from the search results subject to the application of the copyright holders even before signing the memorandum and having the relevant court decision. But, frankly speaking, it was impossible to refer to this consent as to fully voluntary as soon as up to that moment Moscow City Court had already imposed injunctive relief measures subject to the claims of Gazprom-Media. Had Yandex continued to resist, it could get under full blocking as soon as Yandex. Video service, against which the claims were filed, is located under the address: https://yandex.ru/video, and therefore, to satisfy the claims the domain name would have had to be blocked. Signing of the anti-piracy memorandum did not cancel the fact that its parties, as may be seen according to e-justice system, are still parties to the cases considered by Moscow City Court. And if no peaceful agreement is entered into during the process, we can hear the court’s position regarding this problem. This would be useful at least because of the fact that, besides the large copyright owners who signed the memorandum, there are others who are also concerned about the observance and respect towards their exclusive rights.

Despite the concession due to such a serious threat, Yandex, for some curious reasons, continues to insist that the claims of Gazprom-Media are not substantiated, and there is no violation of the exclusive rights of copyright owners in the case with Am. But such stubbornness can still be understood. I wonder more about the fact that not so many claims are lodged against Yandex in connection with Yandex.Video, and why Yandex lawyers agreed to launch such a risky project, and not just agreed, but also allowed its placement on one domain with the main search engine.

Search engine or hosting?

The lawyers of the largest Russian corporation, which is working with information technologies, take an active part in drafting legislative acts relating to the sphere of intellectual property and information technologies. That is, there must be people working Yandex who understand how the intellectual property rights work, and feel respect towards exclusive rights of other persons. All the more surprising was to hear their statement about the unjustified nature of Gazprom-Media’s claims.

The position of lawyers was expressed by the fact that Yandex does not place its content on the service, cannot establish the existence of rights to contents pertaining to the particular web-site and, accordingly, separate the disputed content from the legal one. It would seem that a really difficult problem: how to understand that specific content is pirate? Will the copyright owners themselves suffer from the fact that their legal content will cease to be provided further to queries via Yandex, Google and other search engines? But in reality, the solution to this problem was invented long time ago, and it is used by all search engines, except Yandex. Everything is very simple – search engine continues to be a search engine, but not a place to host video files. This is the approach used by, for example, Google, which does not demonstrate videos via its web-site interface, but refers the client to the originating web-site.

Yandex.Video used to be the web-site to host videos to which users uploaded their content only until 2014. In 2014, the concept has changed, and the service became a half engine to search videos. At the same time on the pages of Yandex.Video (as well as on a similar service of Mail.ru) one can still play any video content on request, which makes Yandex and Mail.ru new Runet’s “kings of porn” (this name was previously attributed to Pavlo Durov because of the disorderly provision of video content via VKontakte). One thing that already says about the weakness of the approach of Yandex’s lawyers.

True piracy

Copyright owners do not often file claims to the “flagship” of the Russian IT industry, but sometimes Yandex has to go to court. For example, in 2012 there was a lawsuit lodged by publishing house Exmo. Disputed was the provision by the search engine of a part of a literary work protected by copyright. In the opinion of the publishing house, the fact that Yandex at its search results allowed to bring a part of the work to the general knowledge was the evidence of the violation of the exclusive rights of the owner of the copyright. However, the court refused to uphold Exmo’s claims explaining that the part of the accessible text available for reading at the search results page is only 1/3300 in comparison to the total volume of the text. It means that the actions of the search engine can be regarded as permissible citation.

It is important to note here that the court did not say: “These are just software mechanisms of information content provision, so let even the whole text be provided, Yandex is not accountable for this”. On the contrary, it admitted that the use of intellectual property may be considered to be a violation in the process of provision of the results by the search engine. The claim was not upheld because of the small volume of work published, and not because the search engine in principle should not care about the exclusive copyright compliance.

The same rules should be applied to Yandex.Video. If, during the search of videos, the search engines provide only the video screenshots – it would be a citation. On its own page Yandex publishes the entire videos not redirecting the user to another page and displaying the illegal content expressly in its window. This is true piracy, which also allows you to gain profits from advertising placed on the engine’s search results page.

Against all the rules

Yandex explains to the copyright owners that it does not bear any responsibility for pirate content, because it cannot control all videos meant to be displayed after the search. But total control is not required – it is easy to redirect the user to third-party sites, where he can get acquainted with the materials of his interest. That is what most other major search engines do. And in this case, the arguments about a mechanism that simply publishes a list of search results do look very convincing.

The falseness of Yandex’s position is confirmed by legislative requirements. In accordance with the Federal Law On Information, dissemination is represented by actions aimed at obtaining information by an indefinite number of persons or its transfer to an uncertain circle of persons. What is more likely to fit this definition than the Yandex Video service? The law does not say that the distribution of information requires downloading pirated content directly to the server.
Being a market leader, Yandex should be an example for the entire IT industry in Russia. But how is it possible to talk about this further to the demonstration of such frankly contemptuous attitude towards the exclusive rights? Yandex itself is the copyright owner of countless intellectual property objects, so it should first of all be interested in responsible treatment towards them.

 
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