Translated material
Music connected them
The owner of an online store is being tried for copyright infringement for the first time
This week the Cheryomushkinsky District Court of Moscow began consideration of a precedent-setting criminal case regarding copyright infringement by the site AllofMP3.com. The former general director of Media Services LLC, Denis Kvasov, was in the dock. He is accused of “illegally using objects of related rights, namely acquiring and storing counterfeit copies of phonograms for the purpose of selling via the Internet.”This is the first criminal trial in Russian judicial practice regarding copyright infringement during the distribution of works of art using digital technologies. Accordingly, the Kvasov case (if it reaches a verdict) has every chance of becoming a precedent in resolving many controversial issues in the future regarding the legal assessment of certain aspects of the work of the domestic Internet business. Moreover, this area in Russia still has many legal holes. It is difficult to say whether this process will mark the beginning of a large-scale campaign against online piracy. So far, the fight against counterfeiting is rather declared, limited mainly to attempts to exemplary punishment of isolated and, which is typical, the least protected citizens in legal and social terms - the director of a rural school or a Ural student who, to their misfortune, used unlicensed computer programs. Although a wide range of pirated products are sold openly in all cities, both on street stalls and in stores. However, when the problem has to be dealt with closely, the Kvasov case will undoubtedly become a starting point for lawyers.
Employees of the Department “K” of the Moscow City Internal Affairs Directorate became interested in the Internet resource AllofMP3.com back in March 2005 after the head of the Moscow representative office of the International Federation of Phonogram Producers (IFPI) approached them on behalf of the recording companies Universal International Music, Warner Music and EMI Music International. Igor Pozhitkov. In his statement, he asked law enforcement officers to figure out on what basis the Media Services company is using its Internet resource - AllofMP3.com - without a permit to sell music products. After checking the facts he presented, the author demanded that the general director of the company be held criminally liable. It followed from Mr. Pozhitkov’s statement that in the period from November 2004 to 2005, Media Services offered users through its online store for a nominal fee - 2 cents per 1 MB - to download a different range of musical compositions in a large number of digital formats - MP3, OGG, WMA, etc.
The police, having documented the work of the AllofMP3.com website, transferred the materials to the prosecutor's office of the South-Western Administrative District (SWAD) of Moscow. However, after studying them, they refused to initiate a criminal case, considering that the actions of the owners of the site AllofMP3.com did not constitute a crime. The prosecutor's office argued its refusal by saying that in the case of distribution of musical works via the Internet, a new copy of the work is not created, but “only conditions are created for the use of the work by users.” That is, the prosecutor's lawyers stumbled on a very controversial issue, which is still the subject of legal disputes in many countries - whether a computer file (simply a set of numbers in a certain encoding) is a material object that can be considered the subject of a criminal transaction.
The higher authority, the Moscow prosecutor's office, did not agree with this decision. There, the decision of the prosecutor's office of the South-Western Administrative District was canceled and on October 11 of the same 2005, a criminal case against Mr. Kvasov under Article 146-3 of the Criminal Code of the Russian Federation (violation of copyright and related rights) was nevertheless initiated. It was based on a statement by IFPI head Igor Pozhitkov, as well as new materials from operatives who, under the guise of clients, carried out a test purchase - they ordered “counterfeit copies of phonograms of musical works, processed into digital MP3 format” through AllofMP3.com, paying about 55 thousand for downloading . rub., as well as the seized server. Denis Kvasov was immediately questioned by the prosecutor's office, but refused to testify, using Article 51 of the Constitution of the Russian Federation, declaring only his innocence.
During the preliminary investigation, it was established that Mr. Kvasov, “using his official position, for selfish reasons, concluded a license agreement with the non-profit partnership “Russian Society for Multimedia and Digital Networks”, in accordance with which Media Services LLC acquired the right use phonograms of musical works without the right to reproduce them, that is, without the right to make one or more copies of the phonogram or part thereof on any tangible medium without the permission of the phonogram producer.” Then the accused registered the website AllofMP3.com, with the help of which he began to sell and copy phonograms, “processing them into digital formats - MP3, OGG, WMA, etc. without the consent of the producers.”
Mr. Kvasov is directly blamed for selling about 2 thousand counterfeit MP3 files, as a result of which IFPI suffered material damage of 55 thousand rubles. By Russian pirate standards, this is quite a bit, but these figures relate only to the test purchase carried out by the police, with the help of which the fact of sale, as the investigation believes, of counterfeit products was recorded.
Lawyer Eduard Morgulyan, who represents the interests of Mr. Kvasov, has not yet commented on the progress of the case. “It’s too early to talk about results,” he told Vremya Novostey. “One thing I can say is that my client did not admit his guilt either during the preliminary investigation or in court, so we will seek a complete acquittal.”
“I hope that the court will dot all the i’s regarding the violation of copyright and related rights,” Mr. Pozhitkov said in turn. - Nothing prevented Kvasov from obtaining official permission, and not scouring the vast expanses of the Internet for files, stuffing them with MP3s and selling them for little money. Such figures prevent several Russian sites operating under direct agreements with copyright holders from operating normally. Unfortunately, there are few legal sites, and they have a harder time than all pirate sites combined. According to law enforcement experts, the monthly income of such an illegal site can be up to $1.5 million. And that is why the judge drew attention to the insignificant amount of damage caused in the case - only 55 thousand rubles. After all, much more phonograms were recorded on the company’s server. And at the end of the judicial investigation, the judge, according to her, had already decided to make a separate decision - to terminate the work of the AllofMP3.com site, which still continues to operate. By the way, the Moscow prosecutor’s office is investigating two more criminal cases, but this time against the management of the company operating the same site. So a start has been made. I hope that after the verdict there will be significantly fewer pirates, because there will be an example before our eyes.”