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25 July 2018 Bryan Cave Leighton Paisner (Russia) LLP has defended Double Data in a precedent-setting dispute against VKontakte over use of public web data

On 17 July 2018, the Intellectual Property Court (IPC) heard a case brought by the owner of the VKontakte social network against Skolkovo resident OOO Double (developer of Double Data software) over use of open data from the social network. Having heard both parties, the court satisfied the cassation appeal filed by Double Data, whose interests were represented by Bryan Cave Leighton Paisner (Russia) LLP, revoking the appeal court’s judgement against the software developer and remanding the case to the first instance court for reconsideration.

The litigation between VKontakte and Double Data is the first ever dispute in Russia over intellectual rights to publicly accessible web data (database) generated by users themselves rather than the website owner. The court had to rule whether VKontanke held rights to the database and whether Double Data infringed on these.

The IPC engaged renowned legal theorists for case examination who, the Bryan Cave Leighton Paisner (Russia) LLP team believes, rightfully pointed out that user data on social media were generated by users themselves, without any substantial investment by the network. Consequently, the litigators argued with reference to the legal expert opinions, VKontakte did not own the exclusive rights to the user data since the data were a spin-off of the network rather than a product of focused investment.

The defence further argued that the Double Data product was essentially an information retrieval system, in the same way as universal search engines such as Google, Yandex, etc. Double Data made the point that, if its single-purpose search system were found unlawful, the universal search engines would also need to be banned because, when running a search, they handled VKontakte data in just the same manner as the Double Data software did.

In March 2018, state regulator Roskomnadzor (Federal Supervisory Service for Communications, Information Technology and the Media) checked Double Data’s operations and found no breach of the effective legislation by the company’s technologies or their uses. As the first instance court noted, the case does not deal with personal data matters.

Double Data’s interests were represented by Bryan Cave Leighton Paisner (Russia) LLP Dispute Resolution and IP Partner Elena Trusova, Counsels Evgeny Oreshin and Natalia Belomestnova, Senior Associate Anton Nefedev, Associate Irina Shurmina and Junior Associate Arina Khoma.

Maxim Ginzhuk, OOO Double founder and CEO: “Today we have seen Russia’s digital economy win another battle against market monopolisation. This is excellent news for hundreds of Russian venturers that build or intend to build their technology business on the basis of open data. Russia has made a step along the way already trodden by the USA, Europe and the whole world: towards supporting innovation, big data technology and artificial intelligence. There is no alternative road available because open data are used throughout the world and, even if it is all prohibited in Russia, international companies will continue processing open data of Russian users and develop technologies on their basis. Should that be the case, Russian businesses would have been more at home globally than in their own country, where they were supposed to be cultivating a digital economy. This would have been totally unacceptable.” 

Elena Trusova, Dispute Resolution and IP Partner at Bryan Cave Leighton Paisner (Russia) LLP comments: “Although the technical element was essential in this case, its key focus was on the fundamentals. The simple choice between whether generally accessible data made available by users on the web may be viewed and processed by everyone authorised by the user or whether these data are owned by the social network for it to decide who might use them and how they be shared. The second scenario is very dubious in the context of freedom of information and the global trends that see free use of public data as a pillar of the digital economy.”

Evgeny Oreshin, Counsel, Dispute Resolution and IP, Bryan Cave Leighton Paisner (Russia) LLP, comments on the dispute: “The leap forward in technology and big data market development poses very serious questions for the courts, questions not addressed by the Russian legislation. We were keen to engage top Russian and international legal scholars to demonstrate to the court that Russia should support public data processing technologies so that we, as a country, might march in step with global trends rather than pursue our own unique route.” 

Natalia Belomestnova, Counsel, Dispute Resolution and IP, Bryan Cave Leighton Paisner (Russia) LLP: “Reconsideration of this case is a great and sound step that, hopefully, will enable the court to plunge into every detail of the dispute, which is so meaningful for the entire digital economy and, more importantly, draw a line under the attempts by Internet giants to assert exclusive rights to public data”. 



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