Bryan Cave Leighton Paisner has represented the interests of Double LLC, a software developer for searching, storing, and analyzing large amounts of data, in a dispute with the social network VKontakte over the use of open data from a social network on the principle of a search engine. VKontakte was represented by S&K Vertical.
According to Bryan Cave Leighton Paisner, "this case is unprecedented and innovative for Russian court practice, since for the first time the Intellectual Property Court (SIP) considers whether public data on users in a social network is a database, and their use by universal and specialized search engines is a violation of intellectual property rights." The firm has also stated that this case can become decisive for the growing industry working in the field of Big Data, as well as for search engines such as Yandex, Google, etc., which also use open data on the Internet.
The court of first instance recognized Double's activity as legal, but the second instance court sided with VKontakte and recognized Double's actions as violating the intellectual rights of VKontakte on the social network. Double then asked SIP to keep in force the decision of the court of first instance, which concluded that VKontakte did not have exclusive rights to the user database and that Double did not extract or use data of users in violation of the law.
On May 22, 2018, the Intellectual Property Court ordered a new consideration of the case on the merits.
Bryan Cave Leighton Paisner’s team included Partner Elena Trusova and Counsels Evgeny Oreshin and Natalia Belomestnova. Trusova commented on the case: "The significance of this dispute for Russian practice goes far beyond the dispute about the rights to the database; the decision can influence the fate of the possibility of analyzing open data on the Internet. In fact, the decision will determine whether user data will be considered as the unconditional property of social networks and social networks can dispose of them at their own discretion without being interested in the opinions of users, or users can decide for themselves who may analyze their data. Foreign judicial practice assumes that it is unacceptable for private companies to be authorized to prohibit access to information posted on their website - this can pose a dangerous threat to guaranteed free information exchange on the Internet. Bigap's monopolization on the Internet is not permissible."
"According to the Civil Code of the Russian Federation, in the opinion of the largest Russian and foreign scientists, in foreign and international practice, the right to the database arises only when the database was the result of targeted investment, rather than a by-product,” added Oreshin. "In addition, the activities of search engines, which include Double software (archiving information from sites, preparing an index for search based on such an archive, issuing hyperlinks for search queries with fragments of information from sites), should not be considered as improper extraction and use of materials from sites on the Internet, otherwise users will not be able to search the Internet."
S&K Vertical's team included Partner Andrey Mikonin, with Attorneys at Law Alena Bachinskaya and Lidiya Brezgulevskaya.
