Is Russia’s New Anti-Piracy Law More Like the Russian version of DMCA or SOPA?

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Is Russia’s New Anti-Piracy Law More Like the Russian version of DMCA or SOPA?

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More like “zh*pa” would say the fans of free music, movies and television shows. Zh*pa sounds like SOPA or The Stop Online Piracy Act (SOPA), which was a controversial US bill to expand the ability of U.S. law enforcement to combat online copyright infringement and online trafficking in counterfeit goods, the bill which did not make it into law. For non-Russian readers, “zh*pa,” which also means a part of a human anatomy, can be loosely translated as an apocalypse or effectively an end (here, to a free ride). Illegal download and view of free copyrighted content on the internet must stop under Russian new legislation which went into effect on August 1.

As the West lambasted Russia for enacting Anti Gay Propaganda Law, Russia’s recent legislation to combat piracy online went almost unnoticed. The bill that amends various legislative acts including Russia’s civil procedure and civil codes (the civil code includes intellectual property provisions) went into effect on August 1.

Under the new law (known as Law No. 187-FZ or the Law), a copyright owner can file a temporary restraining order (TRO) with the Moscow court of general jurisdiction (an analog of US state court) asking the court to issue an injunction against a party that publishes infringing content including pirated movies, TV shows or music on a website.

You need to know all the legislative acts that the Law amends to understand what injunctive measures the court may order. It appears the court may order an alleged infringer to remove the allegedly infringing content. Also, the court apparently can also order that a company that operates the website as well as the hosting company that hosts the website (known in the US as an internet service provider or ISP) that contains the infringing content to remove the infringing content. Ignoring the court injunction order may result in financial penalties. Notably, the copyright owner need not send a cease and desist letter to the infringer, prior to invoking the TRO proceedings. Nor does the copyright owner need to give a take-down notice to ISP.

However, the copyright owner‘s submission under the Law must be substantiated. The copyright owner must demonstrate its rights to the content at issue and show that the infringement did in fact occur. Moreover, the copyright owner must file a lawsuit within a time period prescribed by the court in the injunction order, which may not exceed 15 days. If the copyright owner fails to file a lawsuit, the injunction will be cancelled. It is presumed that the interested parties including the ISP and the alleged infringer would have an opportunity to defend their position and possibly attack the validity of the copyright owner’s rights or raise defenses (for example, fair use) in the lawsuit proceeding initiated by the copyright owner. If the other parties prevail, the alleged copyright owner would have to compensate them for damages resulted from its unjustified use of the Law.

The Law has much more to it than just the special rules on obtaining injunction under the TRO provisions under the civil procedure code. In particular, the copyright owner may initiate a proceeding with the Russian telecommunication authority, which could ultimately block access to the entire website that contained infringing content.

For a more detailed discussion of Russia’s Anti-Piracy Law in English (officially titled as Federal Law No. 187-FZ “On Amending Separate Legislative Acts of the Russian Federation Concerning the Questions of Protection of Intellectual Rights in Information and Telecommunication Networks.”), go to IP-Watch Blog

Critics of the Anti-Piracy Law voice many concerns. In particular, liberal opposition and some western media suggest that the reason that this law was passed is not so much to combat online piracy but for the Kremlin to use that legislation to censor the internet and shut down opposition online outlets. Internet libertarians argue that any regulation by the government will harm the Russian internet. For example, Bloomberg Businessweek profiles the founder of popular Russian social media platform VKontakte (a copycat of Facebook) and discusses the Law in passing

Yet other internet activists gather popular support to cancel the Law. Here is one opinion (in Russian) that questions the constitutionality of the Law.

No doubt, the Law has drawbacks. For example, why is it the Moscow court that only considers such disputes? What about other regions: St. Petersburg, Nizhniy Novgorod, Yekaterinburg, Novosibirsk to name just a few. Don’t these regions have ISPs and highly qualified courts too?

Nevertheless, the Law deserves more praise than critique. For one, Russia continues to fulfill its obligations under the World Trade Organization (WTO) accession treaty. The WTO’s accession required it to combat online privacy. This Law clearly is a step in this direction. This is arguably the Russian version of the DMCA (Digital Millennium Copyright Act) take-down provisions. Of course, enforcement is a key in Russia. We should see soon how this Law is implemented.

Text © Maxim A. Voltchenko 2013

* This piece is not intended to be a technology or legal review. This posting may not necessarily represent the views of the author’s employing law firm. Although every effort has been made to verify the accuracy of items in this Blog, readers are urged to check independently on matters of specific concern or interest.