№ of the case The parties The materials and the evidence examined in the judicial proceedings A56- 8603/99 "Silmarill. Ltd" vs. "Softland.Ltd" Printings of the defendant s site pages, the record of visual examination of the written evidence, executed by the Notary according to the plaintiff s request, where the content of the page of the defendant s site was included, the printings of the texts of the computer programs, the final expert conclusion on the examination executed by the Institute of the Ministry of Justice at the plaintiffs’ request, explaining the modes of access and receiving an information from the defendant s resource, the Copyright contracts, the employer s instructions to program s developers, the certificates of registration, the testimonies A40-38072/00-15-375 "Businessman. Publishing Center. A printing of the plaintiff s site pages, articles, published in mass media Co." vs. "Public library. Co.", "Vector Info. Co." A40-41976/0067-415 "Media-Lingva. Co." vs. "Rambler A printing of the plaintiff s site pages, the copyright contracts, the materials, containing the Media Internet Holding Company. dictionaries texts, the related computer programs Ltd.", State unitary company "Russian language" publishing center individual P.A. Sokolov vs. The copyright contracts, the materials, containing the works of music, a copy from the domain Khodakov and individual A.U. names data base maintained by the Registrar of Russian Area.RU - SC "RosNIIROS", the final act Antonov of the expert examination, executed at the plaintiff s request In the majority of cases, the court, while trying the testimony of the parties and other people, examined the written evidence introduced on paper medium.
The court never used a possibility of a direct investigation of the facts, material to disputes over the violation of rights in Internet, using its own computer equipment and Internet: in every session there were used the paper copies of the information, being seen on the computer screen during the on line access, presented by the parties and other people and examined as the evidence.
Printings from the domain names data base of the Registrar of Russian area.RU SC «RosNIIROS» were introduced by the parties in every proceeding on dis pute over violation of rights in Internet.
During the proceedings the admissibility of such a kind of evidence proving the domain name’s ownership, also confirmed by the parties’ explanations, was not contested and was recognized as admissible.
In each case relating the domain name, printings of the informational re source’s content were also were applied, besides the information received from the domain names database. During examination of those objects difficulties and the debates on their expedience became obvious. In kodak.ru case, in particular, the plaintiff presented the printings from two different resources and explained, that one of them contained a hyper link to another one. So, became evident the defi ciency of presentation of the evidence in printed form — the it does not provide enough reliable presentation of the Internet organization character based on hyper links. Thee defendant denied any organizational and technical connection be tween the printed copies provided by the link.
The mentioned deficiency appeared in other cases as well: Sorokin V.G. and company of the public organization «Ad Marginem» vs. Chernov A.A., «Silmarill Ltd» vs. «Softland Ltd». In the last lawsuit, interesting for legal analysis, the plain tiff introduced the printings of the defendant’s information resource at Internet as an evidence of his copyright infringement during the computer programs’ down loading.
Therefore, the court stated that «the printing of the screen images», contain ing the title of the program, the full name of a developer, the indication of the copyrights’ affiliation with a company, can’t be the evidence of the plaintiff’s rights infringement by the defendant, because the plaintiff’s statement that he re ceived the evidence from the web site at the defendant’s address were not proved.
Besides printed screen images, received by the plaintiff from the defendant’s information resource, in that case there were used a record of the written evidence examination executed by the Notary of St.Petersburg, and the material of the ex pert examination, executed at his request by the Institute of Ministry of Justice.
The record represented printings of the defendant’s information resource and the printings of the interfaces’ images of one of programs, obtained by the Notary himself from the defendant’s site. Later was contested on the ground of its contra diction to the principle of evidence admissibility and relevancy. In order to affirm his position the defendant proposed that in spite of the record’s title, indicating the only one notary action – a visual examination, its text contains the intimation on two actions: obtaining of the evidence and its further examination, though the record stresses only the latter, with the reference to the art. 102 103 of «Basics of General Notary Legislation».
Besides that, during obtaining the evidence the Notary neither mentioned the parameters of his access to Internet during the examination, nor explained, what he had done for installing and setting up the program on his own computer.
Therefore, the defendant stated that the Notary did not performed properly the examination of the evidence obtained by Notary himself and did not compare the printed information with the original one, located at Internet.
Another evidence in that case was the act of visual expertise performed by the North Western regional Center of Judicial Expertise. It contained an information about the access to the defendant’s server and the installation of one of the pro grams at issue and a comparison between the obtained program’s original and the program’s copy, which was presented beforehand.
In order to provide the experts with an access to the defendant’s server, the plaintiff offered them the addresses, where the programs’ modules were placed.
However, those addresses, as the defendant stated, where the inner ones of his server and they were not for public access since contained confidential informa tion. Thus, the breaking up, committed at the plaintiff’s request, had all the fea tures of an offence, stipulated by art. 272 of Criminal Code of the Russian Federa tion «Illegal access to computer information» and the information obtained that way did not meet the requirement of admissibility as an evidence.
Nevertheless, introduced evidences became decisive for the court’s judgment, concerning two of the programs at issue, that «The defendant had committed the actions, directed to the programs’ spreading» and «provided an illegal access to the plaintiff’s program».
An evidence of a certain interest had placed in «Promo RU. Ltd» vs. «Infor mative book Plus. Ltd» case. The printings of the log files of a hosting provider supporting the plaintiffs’ information resource and the printings of a popular searching base «Aport» (http://www.aport.ru), which had indexed the content of the plaintiff’s resource before the defendant’s book was sent to press, were pre sented by the plaintiff as an evidence at the hearing.
During the proceeding in a court of the first judgment, the defendant argued that «the virtual» evidence fixed by the plaintiff as a proof that T. Bokarev had cre ated objects of the copyright later assigned to the plaintiff could not be admissible.
He referred to the blanket rule, contained in clause 2 art.5 of the Act «On Infor mation»: the document, received from the automatic information system comes into legal power after its signing by an official under established procedure. How ever, the court recognized those materials as relevant and admissible ones.
This allows to conclude, that so far in judicial proceedings were used classical ways of obtaining and examination of evidences. Though the cases were tried by judges specialized on in copyright and non in property right issues, the lack of methods of system expertise for obtaining evidence and its examination turned the rather simple dispute (unlike the wide Western judicial practice, having thousands of cases concerning Internet) into dramatic and dragged out procedure.
Nevertheless, methodical approaches, necessary for judicial judgment of the cases, related to the sphere of information relations are gradually developing. The parties and the court need to consider the following data: information on the do main name ownership obtained from the domain name database of.RU Area, printed copies of the resource’s content, received not only from the parties and persons in case but also from other people (first of all, from the providers). Also a special technical expertise should be appointed by the court.
Finally, studying a possibility direct examination of the evidence from Internet right at hearing, it is necessary to take into account, that the information safety precautions must be taken in order to prevent possible falsification as the result of the intervention into the court’s information system.
СПИСОК МАТЕРИАЛОВ И СЕРВИСОВ САЙТА «ПРАВО И ИНТЕРНЕТ» (WWW.RUSSIANLAW.NET) На сайте «Право и Интернет» с начала марта 1999 года в качестве пост мо дерируемого списка рассылки email@example.com действует одноимен ный семинар. Круг обсуждаемых вопросов затрагивает, но не ограничива ется проблематикой взаимодействия права и Интернета. Рассматриваются вопросы теории правового регулирования Интернета, компьютерного и информационного права, интеллектуальной собственности, судебной практики, организационно правовых перспектив развития Сети и инфор мационных технологий в России и мире.
Рабочий язык рассылки — русский, хотя допустимо использование дру гих языков с условием, что предлагаемая информация была понятна рус скоязычным участникам списка.
На начало 2002 года в семинаре участвуют свыше трехсот специалистов из различных стран (Беларусь, Германия, Казахстан, Литва, Молдова, Рос сия, США, Украина, Эстония). С октября 2001 года поддерживается публи кация архивов рассылки семинара.
Адрес семинара в сети Интернет: http://www.russianlaw.net/law/seminar/ menu.htm. Участие в семинаре свободное.
На сайте «Право и Интернет» на начало 2002 года по тематике правово го регулирования сети Интернет были опубликованы следующие статьи, обзоры, стенограммы выступлений и законопроекты.
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