Another break in Tuzov’s case as new session scheduled for June 8
Penza, 1 June 2016. PenzaNews. The Penza region Arbitration Court case of “VolgaInterMedia” against the individual businessman Alexander Tuzov for illegal use of PenzaNews copyrighted work is suspended for a week.
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The third main case session on Wednesday, June 1, began with a speech of the PenzaNews editor-in-chief Pavel Polosin, who expressed the position of the complaintant in detail with arguments.
“Truth be told, it is difficult to comment on the response of the defendant that have no basis with the current legislation and more resemble a writing by a poor student who asks all the whys and tries to find explanations,” Pavel Polosin said, and reminded that the complainant still did not receive the defendant’s responses date 13 May and 30 May 2016, which may serve as a sign of Alexander Tuzov’s inequitable conduct.
“The complainant provided the sources of the copyrighted photos in question on a DVD back in 24 February 2016. We even displayed some of the photos during the previous court session; I hope we will be able to display them today as well, as the photos contain very important metadata – that is, data about data. The defendant’s claims in his response, his statements to the court and in his media sources about the defendant allegedly providing photos ‘modified using a freeware program available from the Internet,’ are untrue. Once again, I would like to stress it: the complainant provided the sources of copyrighted photos to the court, on February 24,” the representative of the complainant said.
He also stressed another important detail for the court.
“The photographer chooses the file type for the photo he makes – DAW or JPG – as he wishes. Either chosen format, depending on the settings, will then serve as its original, the so-called soure file. Therefore, the claim that image sources must be exclusively in DAW are actually negligible. At the same time, as far as I think, the defendant, who seems to be making photos on his own from time to time, knows full well that the photographer is able to choose the source format in his camera settings. If he does not know that, or perhaps forgot, the professional photographer present in the court hall today [PenzaNews photo reporter Maxim Kostyushin] can explain everything and describe how to find the setting,” Pavel Polosin said.
He also stressed that the news articles with the illegally used PenzaNews copyrighted photo published on the defendant’s website cannot be considered comments submitted by the users.
“Being the founder and the editor-in-chief of the media source, as well as the owner and administrator of the domain name, the defendant provides the option for users to publish information on the website at his own risk, and he is the one responsible for the contents. The priority ruling in this case must stem from the Russian legislation – in particular, the Civil Law and the Media Law, not an alleged ‘user agreement’ cited by the defendant,” Pavel Polosin explained.
As he pointed out, Paragraph 5, Art. 57 of the Media Law states that articles that contained the copyrighted photos cannot be considered “live-broadcasted works of authorship” as Alexander Tuzov is not working in the TV field, or “texts unsuitable for editing as per the current law” since Art. 35 of the Media Law does not recognize the texts published on the website in question as “obligatory messages.”
Moreover, Pavel Polosin pointed out that the defendant’s actions in regards to publishing the photos owned by “VolgaInterMedia” do not fall within the Fair Use law of the Russian Federation for information, scientific, educational or cultural purposes.
“In particular, the PenzaNews label – a legally registered copyrighted symbol – has been removed from most of the photos using software: either via retouch or simply by cutting and using only a portion of the image,” he explained, adding that right now Alexander Tuzov’s website lists PenzaNews photo copyright claims even on the photos entirely not related to activities of “VolgaInterMedia.”
Moreover, Pavel Polosin noted that the defendant is engaging in doubletalk over Art. 1253.1 of the Civil Code, “On Responsibility of Information Intermediary,” in an attempt to evade responsibility as per the current legislation.
“We must take into account that Paragraphs 2 and 3, Art. 1253.1 of the Criminal Code relieves responsibility only from two types of information intermediaries, which are telecommunication operators and hosting providers. According to the documents provided to the court by the defender, the latter cannot be classified as either of the two and functions within the legal span of the Media Law which places him responsible for all information published in his media source,” said the representative of the defendant.
Also, Pavel Polosin listed a number of quotes from Alexander Tuzov’s statements that disprove his claims about not publishing any PenzaNews photos in his media source website.
In conclusion, the PenzaNews editor-in-chief reminded the court about the “make-believe” banner ads that bring no income for Alexander Tuzov, and stressed that the quoted defendant’s claim bears no significance for the case from the legal point of view as the latter is engaged in business activities that entails risks.
He was followed by notary officer Igor Schebunyaev, who spoke on the inspection of the webpages listed in the case, including LiveJournal webpages.
According to him, he used dedicated software to prepare the protocols presented for the court from the complainant.
In addition, the notary officer confirmed that he notarized the very information that was displayed on his screen in the browser during his attempt to open the webpages in question.
Following that, the complainant made a statement on the intent to change their claims within the case.
In particular, Pavel Polosin reminded that the defendant refused to explain anything about “Alexander Tuzov’s Blog” in the May 18 court statement by citing Art. 51 of the Constitution, even though he openly had stated that he is not the owner of the LiveJournal page in question in his March 2 statement.
“On April 13, the court declined the complainant’s request to summon additional witnesses that could shine light on the situation. Moreover, other parties – experts, professionals, including stylistics analysts – could be involved in the case. Many people wish to aid the case, as the contents of the blog were flaunty, provoking and smearing, to say the least. And the people did not forget that. They remember quite well who did that, why and for what purposes, and wish to make open court statements about that,” Pavel Polosin said, reminding that “Alexander Tuzov’s blog” was deleted.
“And that is yet another reason for a detailed analysis of why it had been done. But the way, the removal of the blog somehow coincided with the removal of the copyrighted photos from the news source where Alexander Tuzov is the owner and editor-in-chief,” he said.
“We find it unnecessary to find any confirmations of commercial purposes for the blog, although we have the reasons to think that it could have brought the owner material income. The only evidence required in the civil case is the fact of disseminating information to an unlimited amount of readers,” the representative of the complainant explained.
As he reminded, the news source alone is linked to 47 webpage inspection protocols with 53 facts of illegal use of 35 copyrighted photos, while the previous claims featured 74 facts of copyrighted work, including 21 in the LiveJournal blog.
“Due to partial abandonment of the case, we ask the court to reduce the claim amount proportionately to the updated number of facts of the copyrighted work with the same compensation – 40,540.54 rubles – for each fact. As a result, the new claim is calculated at 2,148,648.62 rubles. We also seek the court to recompense us a portion of the previous state duty paid, as per the changes,” Pavel Polosin said and provided the court with the request on paper, which was subsequently satisfied.
Following that, the PenzaNews photo reporter Maxim Kostyushin, who joined the case as a third party, presented his testimony to the court and answered the questions asked by complainant and defendant.
In particular, he confirmed that he is producing photos for PenzaNews under his job agreement, all of the photos produced are considered business works, “VolgaInterMedia” holds their copyright, while he himself has no material claims against the employer and fully supports the original case claim.
In addition, the PenzaNews editor Svetlana Katysheva, who was also present at the case as a third party, expressed her opinion that every PenzaNews employee likely remembers not just the date of each photo but also the conditions under which they were taken.
Moreover, Svetlana Katysheva noted that she and Maxim Kostyushin brought several private and company-owned cameras that were used to take the photos in question, so that the court would be able to study the technical information of the devices and compare them with the metadata of the photos.
Following that, using a laptop and the court hall screen, judge Svetlana Novikova once again displayed the photos provided by the complainant on a DVD on 24 February 2016.
She browsed through every folder with original photos, the files and the technical information, which mentioned the date and time, camera, resolution and other crucial metadata about the photo.
During the display of one of the photos, Alexander Tuzov claimed that the image displayed was taken by him rather than Maxim Kostyushin or any other party, and expressed the intention to provide the court with the original photo later on.
Pavel Polosin immediately expressed his support for the initiative, and reminded the defendant that Alexander Tuzov in that case will be immediately met with a counterclaim on falsification of evidence, which may result in criminal punishment.
Following that, Alexander Tuzov once again attempted to persuade the court that the photos provided by the complainant are not the sources of the photos used by his media source, but eventually stated that he will not be making the claim about the photos provided in the case.
Following that, Svetlana Novikova visited the PenzaNews website links that displayed the copyrighted photos in their web-published format with the agency label in the top right corner.
As mentioned during the court session, most of the copyrighted photos mentioned in the case are related to Alexander Yelatontsev, head of the Penza region Internal Policy Department; and Sergei Kazakov, artistic director of the Penza Lunacharsky Drama Theater, deputy of the regional Legislative Assembly. The defendant provided no explanation for the reasons behind that, though he attempted to make comments on certain statements, and received the first admonishment in the case – one of the two before being removed from the court hall.
After the inspection was finished, the judge gave the word to Alexander Tuzov, who claimed that the website content is provided not by him but by unmentioned users; the original articles should be considered social comments; he should not be held responsible for copyright breach; and if the court decides in favor of the complainant, the decision will “make a revolution” in the law and create the precedent for copyright holders’ wealth accumulation.
Following that, Svetlana Novikova announced that the next case session is scheduled for June 8, added that both parties so far made their statements, provided evidence and the necessary materials, and once again urged the parties to settle the issue out of court.
At that moment, Alexander Tuzov directly approached the PenzaNews photo reporter Maxim Kostyushin, who was using a company-owned camera, took him by the hand and began threatening him for taking photos of him.
Even though Alexander Tuzov spoke quietly, his voice was clearly heard by several people, as well as captured by the court hall audio recording system and at least two voice recorders.
Since the defendant, according to complainant’s opinion, was acting overly emotionally, other people present in the court immediately reacted.
In particular, judge Svetlana Novikova reminded him that all events in the court hall are being recorded on video, warned that she may resort to summoning court bailiffs, and demanded him to leave the court hall, since the court session was practically over at that point.
After walking out down to the first floor and to the exit from the Penza region Arbitration Court building, Alexander Tuzov began waiting for the parties involved in the course. After losing his patience, he ran up to the second floor and met head-to-head with Pavel Stukalov, second representative of the defendant, who agreed to talk to him. The talk in question lasted for aroud 20 minutes, and brought no results, as the defendant kept suggesting to significantly reduce the claim amount and mentioning “reputation expenses.”
Afterwards, Alexander Tuzov, who walked from the Arbitration Court hall to the parking lot, attempted to have a personal talk with the PenzaNews editor-in-chief as his colleague, but the latter rejected the proposal.
Next, Alexander Tuzov described his proposal to the “VolgaInterMedia” president Ivan Malikov, which in a nutshell was limited to purchasing the rights for the mentioned copyrighted photos as per the agency’s regular prices. However, Ivan Malikov quickly excused him from the talk without hearing out the speech in full and drove away without shaking hands.
Later on, the president of “VolgaInterMedia” explained that he finds it unreasonable to waste his personal time discussing such proposals.