VKontakte is disputing personal data of users

The dispute between VKontakte and the technological startup of Double LLC is the first case of the Big Data era in Russia, in which issues of intellectual property, personal data, unfair competition and Internet freedom are closely intertwined.
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Before the court on intellectual rights came one of the most high-profile Internet disputes of recent years - the dispute of "VKontakte" LLC with the technological start-up of LLC "Double". Its consideration is scheduled for July 17.

What is the essence of the dispute?

The company "Double" has developed software for searching and checking in the open sources on the Internet information about people. Such software is successfully used by banks, for example, to check the information provided by the borrower and assess its creditworthiness. Search is carried out including on the site "VKontakte" - on the data that users themselves have made open to the entire Internet, selecting the appropriate profile settings.

That is, the search for information about a person the "Double" software implements exactly on the same pages of the Internet, according to which the data about the person are searched by the search engines "Yandex" and Google, with the only difference that "Double" leads a more intelligent and specialized data on people search (discards irrelevant deliveries, excludes the union of names of namesakes, etc.)

In this case, we are not talking about a complete copying of the database and its implementation on 90-style disks, nor about the "resale" of data, nor about the collection and sale of "dossiers" about people. Double emphasizes that he does not form any own databases on the basis of VKontakte data, but sets up software for his clients, with which they themselves can search for open data on the Internet.

"VKontakte" through the court is trying to prohibit the use of software "Double" to work with public information of the social network, referring to the existence of her exclusive rights to the database of users. The court of first instance sided with "Double", the appeal supported the position of "VKontakte", now the word for the court on intellectual rights.

Are there any rights, or "Where is the money, Zin?"

One of the key issues in the dispute - can VKontakte generally consider user data as the object of its exclusive rights?

Proceeding from the current legislation (Civil Code of the Russian Federation and the European Directive 96/9 / EC "On Legal Protection of Databases"), the database creator can claim an exclusive (adjacent) right to maintain the database if it proves that it has incurred substantial costs to create it.

It is important to understand that the exclusive right to maintain the database is a special kind of law (sui generis), which has a limited effect and a purely special purpose - to protect the costs incurred by the manufacturer. The meaning of this right is that the creators of "non-original" (and, as a consequence, not protected by copyright) databases, which nevertheless made significant efforts in the process of their creation, could get protection of their "sweat of the person" ("sweat of one's brow ") in the form of an adjacent right of the database manufacturer.

This right, however, is strictly limited: not all efforts of the creator can receive protection, but only those that were specifically aimed at creating the database. Proceeding from this, the database, which became a spin-off of a person's main activity, is not protected by any exclusive rights.

For example, the subscriber base generated by the telephone company during the provision of communication services is a collateral and unprotected product (since the company bore the costs of its main activity, and not specifically for the formation of the database), but the telephone directory, whose compilers had purposefully incurred financial and other costs for its creation, - most likely will be able to claim protection.

The meaning of this restriction is to protect only targeted investments and to prevent the monopolization of data by companies that accumulate data in the normal course of business without making any special efforts.

VKontakte considers itself the owner of an exclusive (adjacent) right to maintain the user database, citing the fact that the creation, development and maintenance of the social network required huge investments.

"Double" does not dispute the obvious - the significant costs of VKontakte on the largest social network in Russia, but it indicates that all VKontakte investments were made in the development of the social network as a platform for communication. The database of user data, exclusive rights to which VKontakte is defending, is a separate software product, its structure was set by the VKontakte programmer, but the data is filled automatically when the user registers and fills out or edits his profile on the social networking site. In the opinion of "Double", the database of user data in this case is a by-product of the social network, and so far VKontakte does not prove its special expenses on the formation of the database of user data, the assertion that VKontakte has any exclusive rights to it will not be justified.

Whose rights?

Another interesting question that raises this dispute: can personal data be the object of the rights of someone other than the subjects of personal data themselves?