Liability For Users May Be Worldwide Russian Roulette For Online Services

by Ben Zevenbergen
Tech Dirt

The Russian social network vKontakte has been held liable in a copyright case for the second time this year. Music label Gala successfully claimed damages again, because vKontakte’s users are able to (and do) upload its music and videos to the social network.

This series of court cases may have prompted Mark Zuckerberg of Facebook to speak to Russian Prime Minister Dmitry Medvedev about copyright laws on a recent trip. It is no secret that people do upload a lot of music videos to Facebook as well, so Facebook — or any social media service for that matter — could easily become the next litigation target in Russia.

Music recommendations via social networks have an important function in the modern music industry, because they are great tools for artists’ marketing and consumers’ awareness of new music alike. The question is then, whether the rest of the social media landscape and the culture of sharing and recommending have anything to worry about, following the two rulings from Russia. After all, Russia is a huge market, so global services may be pushed to regulate by code the types of content that is uploaded or linked to. Strict laws in one country can have effects on the way a service operates in another country.

Although details on Russian information law regarding intermediary liability and copyright exemptions are a little sketchy when one cannot read Russian, there does not seem to be a Russian equivalent of the safe harbor provisions in the US DMCA or the EU E-Commerce Directive. Russian services seem to so far have relied on a framework of laws, such as an exception in the fairly new Russian Federation Civil Code (Part IV, 2008), which allows for private copying and a subsequent levy on computers or digital media carriers, and the fact that initiator should be liable for copyright infringements, not the intermediary.

The vKontakte website looks and feels pretty much exactly like Facebook, but there’s a key difference: Users are able to search all uploaded media on the social network, not just in their circle of friends. Although all sorts of content is accessible on Facebook, it has taken care to make content available mainly within groups of friends or when artists publish the works themselves on their own pages. The former likely falls under private copying exemptions, or fair use in the US, whereas the latter is simply a great promotion.

The same cannot be said for service like YouTube and Twitter. Most content uploaded or linked to by their users is searchable and publicly accessible. YouTube, of course, has the technical capacity to filter a portion of copyright protected works. However, no further special care is taken to keep the circulation of content limited. With this in mind, it is interesting to note the reaction by IFPI, the international arm of the RIAA, who celebrate this second ruling:

“The IFPI suggests that the 11 licensed digital music services in Russia have ‘not developed to their full potential’ because of the easy availability of free music on vKontakte. But rather than simply restricting its upload and search capabilities, the real question is whether, like Baidu in China, vKontakte can become a licensed partner for the music industry rather than a foe for the long term.”

IFPI tries to push the social network to purchase licenses for the works their users are sharing on its service. This is made possible by the absence of rules exempting intermediaries, such as social networks, from liability for the actions of their users. Much can be said about the negligence with which vKontakte made uploaded content available to its whole user base. However, when comparing vKontakte to the services of Twitter and YouTube, it suddenly becomes apparent that any user-generated content service that operates worldwide may well be playing Russian roulette with their own liability for their users actions.

This is not to say that services should refrain from buying licenses from rights holders. However, in order not to start a technical race to the bottom, where user-generated content services adhere to the strictest copyright law the world has to offer (with all its negative consequences) in their aim to expand into new territory quicker than competitors, some reflection is needed on the global norms regulating intermediaries. Cases such as this one should ideally trigger new discussions and considerations at the international level. Maybe Zuckerberg can hold his next talk about global copyright at venues such as at the WIPO or the WTO.

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