Bryan Cave Leighton Paisner (Russia) LLP acts for OOO Double against Vkontakte

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Bryan Cave Leighton Paisner (Russia) LLP is acting for Skolkovo resident OOO Double in a dispute with VKontakte over the Client’s use of public data from the social network in a search engine manner. The Double Data software involved was developed by our Client on the basis of its own big data search, storage and mining methods and algorithms.

This dispute is ground-breaking in Russian case history since, for the first time ever, the Intellectual Property Court (IPC) is examining whether publicly accessible data about social media users comprise a database and whether their use by both universal and single-purpose search engines constitutes a breach of intellectual property rights.

The first instance court dismissed VKontakte’s claims, holding that Double’s operations were lawful. Yet the second instance court sided with VKontakte and recognised our Client’s activities as violating the claimant’s IP rights to the social network as a database. 

Double has applied to the IPC for the first instance court’s decision to be upheld, to the effect that VKontakte had no exclusive rights to the user database and that Double did not break the law by extracting and utilising the user data. 

Elena Trusova, Dispute Resolution and IP Partner at Bryan Cave Leighton Paisner (Russia) LLP comments: “For Russian case history, this dispute is evidently of greater significance than just a database rights case, since the judgement might decide whether open data analysis on the Internet will, in fact, be permissible. The IPC decision will effectively determine whether user data is treated as the unconditional property of social media, to deal with at their discretion without asking what the users themselves think, or whether users may decide who is allowed to analyse their data. Foreign case law favours the principle that private companies may not ban access to information posted publicly on their websites, as this might seriously jeopardise the guaranteed right to free information exchange on the Internet, and so does not tolerate big data monopolisation on the Web.”

“According to the Russian Civil Code, prominent Russian and foreign scholars and foreign and international case law, rights to a database only arise when it is a product of focused investments rather than an incidental by-product. In addition, the functioning of search engines, including the Double software (archiving data from websites, indexing the archived data for search purposes, returning hyperlinks with bits of data from the websites in response to searches) must not be treated as unlawful extraction and use of website content or we will have no Web search”, says Evgeny Oreshin, Counsel, Dispute Resolution and IP, Bryan Cave Leighton Paisner (Russia) LLP. 

Natalia Belomestnova, Counsel, Dispute Resolution and IP, Bryan Cave Leighton Paisner (Russia) LLP: “This case is particularly notable because, for the first time in Russian judicial practice, the balance between exclusive rights and the rights of personal data subjects are under scrutiny, that is, whether a social network that can prove its exclusive rights to a database may, on these grounds, consider itself the owner of user personal data, which are intrinsically inalienable and non-transferable and may only be owned by the data subjects themselves. An equally exciting aspect of the case is the extent of exclusive rights protection when exercise of such rights manifestly serves to restrict competition on the market.”

This case might be pivotal for the big data industry that is now gaining such momentum and, equally, for search engines, such as Yandex, Google and others, which also make use of open Web data.

The IPC has scheduled the case examination on the merits for 22 May 2018. The hearing will be held at 10 a.m. in the IPC building at 5 Ogorodny Proezd, Bldg. 2, Courtroom 4.

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OOO Double was set up in 2012 and specialises in developing software products based on proprietary methods and algorithms for big data search, storage and mining. The Company designs its solutions to reduce overdue debts and to detect fraud in retail lending with the help of top-notch technologies and their integration into existing banking business processes. In 2013 and 2014, the Company successfully completed over 100 projects for Banks (including from among the Top 5 and Top 10), credit history bureaux, microfinance providers and debt collection agencies. Double Data technologies are designed in conjunction with professionals from the Weierstrass Institute for Applied Analysis and Stochastics Leibniz Institute, Berlin; the A.A. Kharkevich Institute for Information Transmission Problems of the Russian Academy of Sciences; and the Moscow Institute for Physics and Technology (State University). Technological advancement of Company solutions has been confirmed by the Skolkovo Fund: Double Data joined the Fund’s IT Cluster in early 2014. Double Data is financed by venture funds with vast experience in data management, the financial sector and development of B2B software solutions.

The Russian practice of Bryan Cave Leighton Paisner (before the merger – GBLP) was established in 2009 as a result of a merger between one of the biggest teams of Russian lawyers and the major UK law firm Berwin Leighton Paisner (BLP). The highly respected Moscow team of over 100 lawyers, qualified under Russian and English law, has over 20 years of experience in providing legal support for major Russian businesses, as well as multinationals implementing large-scale investment projects in Russia. Clients include over 1700 companies, among them major multinational investors operating in Russia (including 130 Forbes Global clients), Russian and international banks and financial institutions and Russian industry-leading companies. 5 times winner of Law Firm of the Year in Russia since 2009, including Chambers Europe Awards 2010, 2014 and 2015; The Legal Business Awards (Legal 500) 2010; The Lawyer European Awards 2014. #2 by revenue in the top-50 law firm ranking by revenue in Russia (according to the leading national ranking Pravo.Ru 2017). Top-ranked by The Legal500 and Chambers & Partners in core practice areas: corporate/M&A, real estate & construction, dispute resolution, competition/antitrust, tax/customs, IP.

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