Given the phenomenal rate at which pirated content is uploaded and spread online, it’s no surprise that mistakes are made by those attempting to block or take it down.
Even at a rate of 99% accuracy, well-intentioned takedown requests have the potential to cause damage to people that have nothing to do with piracy. Indeed, erroneous or malicious takedown and blocking requests can deny other copyright holders the ability to exercise their right to distribute copyrighted content.
While provisions exist in US law to punish those who abuse the system, legal action is extremely rare. A draft law tabled in Russia hopes to make denial of access to content less prevalent while also offering support to intermediaries.
Liability For Initiating Illegal Takedowns
The draft is the work of Russia’s Ministry of Economic Development and its aims are outlined in an explanatory note.
“A person who illegally initiates the termination of access to intellectual property in the information and telecommunications network of the Internet can be held civilly liable in the form of damages,” the note on the government portal reads.
The proposal relates to two articles in Russia’s Civil Code (ГК РФ) that concern intellectual property – Article 1301 (Liability for a Breach of the Exclusive Right to a Work) and Article 1311 (Liability for Infringement of the Exclusive Right to an Object of Allied Rights).
Both articles protect rightsholders by holding infringers liable to pay compensation. There are currently no provisions for compensation when distribution rights are denied due to illegal blocking or takedowns, so the draft law aims to fix that.
Compensation, Not Damages
Articles 1301 and 1311 of the Civil Code address infringement by requiring infringers to pay compensation to rightsholders rather than damages. The draft law applying to wrongful blocking and takedowns will take the same approach while maintaining the current compensation range of 10,000 to 5,000,000 rubles ($165 to $82,700).
Should the draft law be written into law, rightsholders will have the right to demand compensation in an amount to be determined by the court. The amount will vary depending on the circumstances, with flagrant or egregious violations punishable at the higher end of the scale.
How the courts will ultimately handle such cases remains to be seen but given the volume of wrongful takedowns, cases could potentially mount up. However, the draft law also aims to solve another problem affecting service providers.
Easier Life For Online Platforms
The DMCA requires service providers in the United States to remove content in response to a compliant takedown notification. If the takedown notice is sent in error or maliciously, a counternotice option is available. If the notice sender fails to file a lawsuit in response to a counternotice, content can be restored by the service provider without fear of liability.
Russian law enables exclusive licensees to send takedown notices to websites, which are required to remove the allegedly infringing content within 24 hours. Website operators can request more information from notice senders to prove ownership of content but if infringing content isn’t removed, that may go against the website owner if the matter ends up in court.
The draft aims to make life easier for online services by removing uncertainty when responding to a notice. When a takedown notice is sent to a service provider, a direct line on liability will connect the sender and the owner of the content. In the event that the notice is illegal and legal content is blocked or taken down, the injured party will be able to claim compensation directly from the sender.