Liability For Users May Be Worldwide Russian Roulette For Online Services

from the lowest-common-denominator dept

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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 12:36am

    It comes down to the same problem: if the copyright material is one of the main draws of the site, then they really need to either find a way to license the content or drop this aspect of their site.

    I really wonder what the effect on the usage of vKontakte would be if they blocked the ability to see content outside of your immediate friends (ie, not even friends of friends) similar to Facebook. I would guess it would lead to a massive drop off.

    Sort of hard to avoid this problem...

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 1:28am

    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.

    And there is nothing stopping anyone from doing that.

    I'm gonna go post this status on my Facebook right now:

    "Check out the Torche record that came out a few months back. It's awesome."

    No copyright issue.

    Anyone that reads my status can check them out on Spotify, Spinner, clips on Amazon or iTunes, etc. and decide if they like it.

    No copyright issue.

    It really is time for people to stop lying about how piracy is the only way to decide if you like a new piece of music. It's transparently disingenuous and offensive to everyone's intelligence.

     

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  3.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 1:52am

    How long before the MAFIAA sue an ISP for allowing music file to be carried over their network?
    The MAFIAA are trying to treat internet services as if they were publishers, that is they actually control what is on their sites. This is impracticable because of the volume of posts.
    They must be aware of this, and this is why they are trying to get Internet services responsible for user posts, and if they succeed they will eliminate the Internet as competion in the music and film distribution business.

     

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  4.  
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    Richard (profile), Oct 18th, 2012 @ 2:25am

    Re:

    if the copyright material is one of the main draws of the site,

    I doubt that greatly.

    I really wonder what the effect on the usage of vKontakte would be if they blocked the ability to see content outside of your immediate friends (ie, not even friends of friends) similar to Facebook. I would guess it would lead to a massive drop off.


    You would guess wrong - after all Facebook, without that facility, is pretty popular...

    One of the really anjnoying things about the attitude of rightsholders is the arrogant asssumption that the internet is largely driven by demand for their content - this is rubbish. People use social media primarily to talk to their friends - not to download content. The ability to freely share content is a consequence of the open architecture of the internet biut it is not the driving force behind it.

     

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  5.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 3:12am

    Re:

    So, how long do people last in your "lying-ass media industry shill" line of work, anyway?

    It's gotta be soul-crushing trotting out the same old tired lines day after day, with your "listening to music without paying for it is morally indefensible" and your... well, there's no variation to that message, so I guess you're only being paid for the one topic.

    I mean, every day you must have to go visit a bunch of sites and spew this nonsense of "if you heard it, you have to pay for it", even though it's not true now and it never has been true, ever.

    If people didn't like live music in a bar, before recorded music, they didn't pay the performer, and the performer never bothered to come back.

    If a band is booked to perform, and they're not popular, or they don't advertise properly, nobody comes and they perform for "free", or at a loss, or decide not perform, pissing off the people who did bother to come.

    Back when home recording wasn't viable, people bought very few albums, took them with them to parties, played them at friends' houses, all that terrifying "unlicensed public broadcast" shit you fearmonger about. It's called "spreading the word", or "free advertising", and people would decide, on the basis of that free advertising, provided by fans to not-yet-fans, whether they wanted to add that music to their personal collection.

    And now we're in a new era, where recordings can be transmitted and copied essentially for free, forever. And there's still no moral obligation to pay for what you listen to.

    But if you value the performer, and you want them to continue to perform, then your best bet in making that happen is to pay them to do so. Just like it was back before recorded music even existed.

    But you can carry on with your bullshit if you really must, I suppose. After all, someone wants you to continue, and you're getting paid for it.

     

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  6.  
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    Mesonoxian Eve (profile), Oct 18th, 2012 @ 3:37am

    Why so serious?

    Has TD forgotten about our wonderful DoJ, who has the power to take down servers all over the world? Please be patient. This matter will resolve itself soon.

     

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  7.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 3:45am

    Re: Re:

    "You would guess wrong - after all Facebook, without that facility, is pretty popular..."

    You made my point for me. Is this Russian service using this "feature" as their main draw compared to Facebook? After all, Facebook is available in Russia, in the local language. So this would be a competitive issue when compared to the big site.

    "One of the really anjnoying things about the attitude of rightsholders is the arrogant asssumption that the internet is largely driven by demand for their content - this is rubbish."

    Actually, it's a strawman you are making up. The internet really is a big source of information, social activity, and commerce. It happens that our social world is connected by the common languages of music, movies, and other forms of entertainment, which means that some of the most popular sites online are those which discussion those sorts of things.

    It can be said, however, that content does drive the internet - content of all sorts. That includes your comment, as well as mine.

    Remember to sweep up the floor, there is straw all over the place.

     

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  8.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 3:46am

    Re: Re:

    "It's gotta be soul-crushing trotting out the same old tired lines day after day"

    So why exactly do you do it, then?

     

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  9.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 3:46am

    Re:

    Rights-holder corporations don't own the internet and have a hard time assimilating it, meanwhile causing as much damage as possible.

     

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  10.  
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    btrussell (profile), Oct 18th, 2012 @ 3:56am

    Re:

    "... if the copyright material is one of the main draws of the site, then they really need to either find a way to license the content or drop this aspect of their site."

    I come to this site, techdirt, because of copyrighted material. You're saying they should drop their articles?

    Can you give an example of a site that has no copyrighted material please?

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 4:01am

    Re:

    Maybe if you didn't help to destroy music radio, we wouldn't need social networking to hear a variety of new music.

    Instead, your solution is to basically tell people "Hey, did you hear the news?" and let people hunt around for "approved" samples.

     

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  12.  
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    The eejit (profile), Oct 18th, 2012 @ 4:55am

    Re: Re: Re:

    Because I'm trolling for women, of course.

    /s

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 5:10am

    Response to: Anonymous Coward on Oct 18th, 2012 @ 1:28am

    Think about what you wrote. That's the same thing as actually putting the music .on the facebook

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    Richard (profile), Oct 18th, 2012 @ 5:26am

    Re: Re: Re:

    When I said "content" in "The ability to freely share content" I meant, of course, tha ability to share "traditional 3rd party copyrighted content". Ok I should have been more precise - ( although I was of course misusing the word in exactly the same way that traditional big rightsholders routinely do).

    You made my point for me. Is this Russian service using this "feature" as their main draw compared to Facebook?
    No they are using the fact that they are a native Russian service as their manin draw. People are nationalistic and will use a service from their own country in preference to a foriegn one.

     

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  15.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 5:54am

    Re: Re: Re:

    Durhurrhurr, I R not adres agrumnet. Hurr.

     

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  16.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 6:33am

    Re:

    They have already succeeded in making ISPs reliable for providing a DNS-translation in a lot of countries...

    If ISPs can be held reliable for damages too and their users use of sites, you are looking at a completely different internet.

    And by that I mean an internet heavily encrypted and governments desperately pushing developers of encryption services to provide a backdoor... The desperation in that case is really what we should all fear cause that is exactly what could drive society towards extremes and in this case primarily a "human right"-less surveilance-state.

     

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  17.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 7:03am

    Re: Re: Re: Re:

    "People are nationalistic and will use a service from their own country in preference to a foriegn one."

    Ahh, so all of Facebook's 100 million users are in the US?

    Got it.

     

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  18.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 7:04am

    Re: Re: Re: Re:

    Durhurrhurr, coodunt fine ne inyur p05t.

     

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  19.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 7:24am

    Re: Re:

    Node to Node relay networks, like Fidonet and UUCP, while slower are much harder to monitor. Also micro SD cards by snail mail, or regular travelers between two place have a potentially large bandwidth. Several years worth of Hollywood output would fit comfortably in a matchbox.

     

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  20.  
    icon
    Richard (profile), Oct 18th, 2012 @ 7:32am

    Re: Re: Re: Re: Re:

    , so all of Facebook's 100 million users are in the US?


    Never said that - however they are more dominant in the "Western" world.

    Former Eastern Block countries and East Asia (China etc) have a different pattern.

    Note that Facebook is only No 3 in Russia - there is another Russian site ahead of it suggesting that it is the Russian-ness of the site that counts.

    Also - people choose their social network according to what their friends have chosen - hence there is a spontaneous symmetry breaking effect.

    If what you say is true why don't US users go to vKontatke for the filesharing???

     

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  21.  
    icon
    Ninja (profile), Oct 18th, 2012 @ 7:33am

    If the MAFIAA has the choice of allowing a tiny bit of fair use or killing baby Jesus they'll do the latter.

    And it's amusing that IFPI is moaning on the case when they had a very recent tax fraud and such legal issues. Rotten greedy bastards. If I had to choose the worst RIAA arms it'd get 2nd place just below BREIN and its clown CEO Tim Kuik.


    In the end it's very easy to buy politicians on Russia and try to set some international precedent, right?

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 8:43am

    Re: Re: Re: Re: Re:

    That would be a reading comprehension failure on your part. How about going back and actually reading it?

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 10:46am

    Re: Re:

    you're getting paid for it.

    If I was getting paid, I wouldn't need to be here pointing out your pirate bullshit.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Oct 18th, 2012 @ 10:49am

    In Mother Russia face books you.

     

    reply to this | link to this | view in thread ]


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