America’s controversial Stop Online Piracy Act is back—and it’s poised to become law in a matter of weeks. SOPA, however, isn’t coming to the United States, where a wide coalition of Internet companies, human rights organizations, and concerned citizens defeated the legislation with a massive protest campaign in January 2012. A law that creates similarly harsh penalties for online copyright violations is on the cusp of finding a home in Russia, where it is called “Bill № 292521-6 [ru]: Amendments to the Russian Federation’s Laws Protecting Intellectual Property Rights on Information-Telecommunications Networks.” The media, understandably, is just calling it “the Russian SOPA.”
The lower house of Russia’s parliament, the Duma, approved [ru] a first draft of the legislation today, June 14, 2013, with a vote of 257 to 3 (plus one abstention). This move by lawmakers comes despite unanimous opposition from Russia’s Internet companies, which have rushed this week to publish detailed reports on the legislation’s potentially catastrophic damage to the RuNet.
Russian SOPA’s nuts and bolts
Indeed, Russia’s SOPA-clone contains a number of worrying clauses. The law’s regime for notifying Internet service providers of copyright abuses, for instance, is laughably inadequate. Copyright holders do not need to provide ISPs with the specific location of an infringement (not even a URL address), forcing Internet companies to conduct constant monitoring for possible misuses of (potentially) copyrighted materials.
The law also revises the conditions of limited liability, exposing ISPs and other Internet intermediaries to legal responsibility in situations where they exercise no control over the content in question. Russian search engine Yandex warns [ru]:
[…] позволяет прийти к абсурдному выводу о том, что, получив уведомление правообладателя о потенциальном нарушении, имеющем место при передаче материала, провайдер, осуществляющий передачу, будет обязан каким-то образом прекратить такую передачу в отношении конкретного материала, что технически невозможно.
[The law] allows us to come to the absurd conclusion that, having been notified by the copyright holder of a potential violation occurring in the transmission of materials, the ISP, which performs the transmission, will be required somehow to stop the transfer of some specific material, which is technically impossible.
The Russian Association for Electronic Communications (RAEC), which participated in the Culture Ministry’s working group [ru] on the anti-piracy legislation, has also criticized [ru] the law’s lack of consideration for possible fair use of copyrighted materials. Additionally, the RAEC protests, the law creates circumstances wherein ISPs must take provisional measures before copyright holders have filed a formal claim with the courts. Many opponents of the Russian SOPA cite this aspect of the law as an example of extrajudicial censorship. The reality of the law’s provisions is more complicated.
According to the legislation, the Moscow City Court would serve as the court of first instance in all civil cases involving online copyright infringement. Copyright holders first appeal to the court with a complaint that their property is being misused online, attaching (1) proof that they own the materials in question, and (2) proof that someone else is using them. (The court is supposed to take no action, without these attachments.) The court then determines a deadline, not to exceed fifteen days, by which the plaintiff must file a formal statement of claim, which actually launches the legal suit.
In the two weeks between the initial appeal and the option to file a suit, however, the law empowers the Moscow Court to force ISPs to take “interim measures” to remove the content in question, or risk having their entire IP address blocked, if they fail to comply within three days. If the plaintiff fails to file suit after fifteen days, the court dismisses the case and lifts the order for interim measures.
The RAEC claims that there is nothing in the legislation to prevent copyright holders from appealing to the Moscow Court every two weeks, without ever filing a formal suit. In other words, determined plaintiffs could keep in force what are supposed to be interim measures, by using the law as a rotating door. The RAEC explains in its report [ru] on the legislation:
Правообладатель имеет возможность не подавать иск, а каждые 15 дней обращаться за применением новых предварительных обеспечительных мер, и никакой ответственности за подобную практику не установлено.
The copyright holder has the opportunity not to sue, but every fifteen days [it can] appeal for the application of new interim measures, and [the law] establishes no responsibility for such behavior.
However, there is a provision in the law that allows ISPs to sue for losses incurred when executing the interim measures, if the plaintiff fails to file a formal suit within the fifteen-day period, or if an arbitration court later rejects the copyright holder’s claim. The current legislation [ru] reads:
Организация или гражданин, права и (или) законные интересы которых нарушены обеспечением имущественных интересов до предъявления иска, вправе требовать по своему выбору от заявителя возмещения убытков […], если заявителем в установленный судом срок не было подано исковое заявление по требованию […], или если вступившим в законную силу судебным актом арбитражного суда в иске отказано.
The organization or citizen, whose rights and (or) lawful interests are violated by ensuring the [plaintiff’s] property interests before the filing of a claim, has the right to demand their choice of indemnity for losses suffered […], if the plaintiff did not file a claim in the required time period […], or if a valid court decision by an arbitration court rejected [the plaintiff’s] claim.
Finally, the RAEC complains that the law creates a jurisdiction overlap with existing arbitration procedure code, and generates an inconvenient and inefficient legal bottleneck by forcing all parties, regardless of their location, to deal with a Moscow court.
Stakeholders propose changes
The new anti-piracy law also calls for blocking entire IP addresses, in the event of noncompliance with court-ordered interim measures. The push for blacklisting entire IPs is surprising, given the growing consensus that this method is more likely to damage legitimate websites than the Web’s copyright infringers, who can easily circumvent an IP blacklist by changing hosts, adopting dynamic IP addresses, and so on. While Internet service providers and industry experts have long criticized IP blocking (which came packaged in Russia’s legislation last year to blacklist online materials harmful to children), even Roskomnadzor—the government body responsible for administering that blacklist—recently acknowledged the inefficiency of IP blocking in a post [ru] on its new public outreach website, “WeCanTrust.net.”
The Duma’s Committee on Culture has also proposed a series of controversial amendments that could appear in the next iteration of the legislation. The Committee’s suggestions include an expansion of the law’s applicability to search engines; the creation of a new blacklist for all websites containing illegal materials; and applying the law not just to audiovisual content, but also to “books, articles, photographs, and other copyrighted objects.”
Yesterday, on June 13, 2013, Yandex sent [ru] the Duma its official list [ru] of comments and suggestions for revising the anti-piracy law, as the bill heads back to committee for more amendments, ahead of its second and third readings on the parliament floor, which could take place as early as next week [ru]. In a blog post [ru] that also sharply criticized the new legislation, Google Russia’s Director of Government Relations, Marina Zhunich, announced that Google, too, has shared with the Duma its recommendations for eliminating the most radical aspects of the draft legislation.
Both Google and Yandex are calling for amendments that would render the Russian SOPA more similar to the Digital Millennium Copyright Act, another American law, passed in 1998 by a unanimous vote in the United States Senate and signed into law by President Bill Clinton. Unlike the anti-piracy law that Russian legislators are now considering, the DMCA exempts from liability Internet service providers and other intermediaries under a regime in which copyright holders directly notify ISPs of infringement claims, without the application of automatic censorship or state-administered blacklists.