The search engine’s appeal has been granted and the order issued by the Court of Rome this March after a request by PFA Films to remove all links leading to “infringing copies” of the film, has been revoked.
With this new decision of 11 July 2011, the section of the Court of Rome specialized in intellectual property has reaffirmed the principle of non-responsibility of the provider: “limitation of liability introduced for the benefit of ISPs is primarily designed to prevent the introduction of a new hypothesis of strict liability which is not legislatively defined, or at least to prevent the hypothesis of profit sharing by providers on illegal contents transmitted by third parties using their connectivity services.”
With regard to Yahoo!’s failure to remove links to material reported by PFA film as infringing copyrights, the Court underlined that the applicant must not only prove they are the legitimate holder of intellectual rights but must also provide proof of the unauthorized publication of the work on the reported websites. In doing so the applicant is therefore required to give precise indications of the URLs of sites where the alleged violation has taken place. However, PFA Film limited itself to bringing to Yahoo!’s attention in general terms the presence of a considerable number of links offering non authorized viewing of the film.
Many Italian netizens now hope that this order by the Court of Rome will have the power to influence the outcome of the public consultation of the controversial AGCOM Regulation, which we have recently dealt with on our blog.
The recent decision of the Ninth Section of the Court of Rome ordering Yahoo! to exclude from its search results all links to pages containing pirated version of the Iranian film “About Elly” has caused a great furore.
This is an order issued by judge Gabriella Muscolo that forbids Yahoo! “from continuing and repeating the infringement of the commercial exploitation of intellectual property rights on the film through the search engine’s links to websites that contain the film, either whole or in part, which are different from the film’s official website”.
The decision seems to have been taken in consideration of the fact that Yahoo! had previously received a request from the film’s production company to remove all links to pirate websites, but Yahoo! did not fulfil that request.
Therefore this order does not require Yahoo! to make a preliminary check on its links but it ascribes to the company the responsibility deriving from the awareness of the infringing nature of their contents. Thus the company has been convicted on a charge of contributory infringement as, through its links, it enabled a connection with pirate websites, “which permit the film About Elly to be watched in streaming or through downloading or peer-to-peer sharing without the authorization from the commercial exploitation rights holder and therefore infringes copyright”.
Predictably Yahoo! announced its intention to appeal against the order. The company announced in a public statement that it will appeal against “the erroneous interpretation contained in the order according to which search engines are responsible for content shown in web search results even if created and hosted by third parties”.
The search engine company also wished to underline a particularly important detail, namely the requests to remove links made to Yahoo by PFA, the film production company, which do not contain any reference to the URLs of links to be removed. The filtering operation of links whose URLs are not precisely reported would oblige search engines to constantly monitor web contents. In Yahoo’s opinion such a responsibility “is not only in conflict with the existing law and the principles stated in the e-commerce Directive, but it may also lead to serious constraining consequences on the freedom of speech on the Internet”.
The spokesperson of Opengate, the company which sued Yahoo on behalf of PFA Films, expressed great satisfaction with the judge’s decision and remarked that such a sentence is without precedent anywhere in the world.
However, the same comment has also been made, in a negative sense, by those who have criticized the Rome Court’s decision. What especially aroused perplexity is the choice of penalizing search engines and not hosting providers in order to block access to illegal content. In fact, similar requests have previously been addressed to web space providers or content providers such as YouTube.
The legal representative of PFA Films, holder of the rights to the film About Elly, announced to the Italian Newspaper “Il Sole 24 Ore” their intention to proceed with a request for substantial compensation for the losses deriving from “parasitical competition”. The lawyer added that PFA might also be ready to sue Google and Microsoft. In point of fact these companies have already been involved in the Yahoo! trial, through their subsidiaries Google Italy Srl and Microsoft Srl but the accusation against them had elapsed in that the above mentioned Italian companies do not manage their respective search engines which are in fact controlled by the US parent companies.