Editorial Director: Giusella Finocchiaro
Web Content Manager: Giulia Giapponesi

posted by admin on febbraio 23, 2015

Copyrights, Responsibility of providers

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The Milan Court of Appeal has upheld Yahoo’s! appeal against the judgement for violation of copyright, issued in favour of the Mediaset Group in 2011.

Yahoo’s! Italian division had been convicted because of a number of videos uploaded by users on the “Yahoo! Video” platform which is now no longer operative. The incriminated videos had been taken from RTI (Mediaset Group) television broadcasts such as “Amici”, “Grande Fratello”, Striscia la notizia”, and so on.

In the opinion of the Court of First Instance, although the videos had been circulated by users, Yahoo was to be considered responsible for the violation inasmuch as the activity of the platform could not be restricted to the liability provided for under article 14 of the European Directive on Electronic Commerce (2000/31 / EC) implemented by Italian Legislative Decree 70/2003.

Failure to recognize the neutrality of the intermediary was motivated by Yahoo’s! alleged control over the videos which would have made the platform an “active” hosting provider and thus different from the “passive” providers protected by the Directive. Basically, the Court had identified the platform’s business activity to be of a publishing nature, due on account of the function of automatic indexing and, paradoxically, the ability to remove content reported as illegal.

Accordingly, the Court had also found Yahoo! guilty of the non-removal of all the videos following the injunction served by RTI. These were grounds that Yahoo! had unsuccessfully contested during the proceedings, claiming to have immediately removed the nine videos indicated and to have requested RTI to specify other URLs of videos to be removed, in addition to which they claimed they had never received the complete list.

In a ruling that overturns the judgment of First Instance, The Court of Appeal stressed that Yahoo! had also promptly proceeded to remove a further 218 videos, when the relative URLs were indicated by RTI during the course of the trial.

With regard to the platform’s culpability, the Court of Appeal quoted certain decisions taken by the Court of Justice of the European Union such as those relating to the SABAM-Scarlet case, the -SABAM Netlog case and the Telekebel case and rejected the interpretations of the Court of Milan in 2011. Consequently the conditions do not exist for considering the platform as belonging to a different type of hosting provider not protected by Directive 2000/31/EC. Yahoo! is therefore a simple intermediary and as such under no obligation to independently identify any content in violation of RTI’s rights, nor would it have needed to implement a system of filters to prevent the further violations.

RTI has therefore been ordered to pay Yahoo’s! legal costs incurred in First Instance and Appeal amounting to 244,000 Euros.

The text of the judgment is published HERE.

 

 

In its search results Yahoo! is once again free to show links to websites which offer “pirate” streaming of the Iranian film “About Elly”.

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 Court of Milan, offers much food for thought.

In brief, the Court turned down the appeal and ordered Google to suspend the association between the first name and second name of a businessman and words such as “truffa” (fraud) and “truffatore” (swindler) which would automatically appear when typing the businessman’s first name and second name followed by the letter “t”on the search engine.

Google’s line of defence was that the association occurred automatically in that it was made by the software which automatically completes search queries on the basis of previous searches made by users. Nevertheless, Google did in fact comply with the order.

The most relevant aspect of the decision for lawyers is that the Court defines the search engine as a database. Thus, Legislative Decree 70/2003 regarding provider responsibility and exemptions from responsibility provided for by that law, cannot be enforced.

Therefore the question of the provider’s awareness of infringement is of no importance.

This question is, however central to other Italian Court decisions. The latest being the order of the Court of Rome of the 23rd of March with regard to the Yahoo! case.

Today, in order to analyze the highly complex issue of provider responsibility it is essential to identify two separate analytical profiles, the first technical-juridical and the second regarding legislative policy.

 

1) The technical-juridical profile: application of current laws

The technical-juridical aspect can be summed up in brief as follows: Is it correct to find, as many recent Italian rulings do, in favour of an exclusion for the provider from exemption from responsibility, provided for by article 17 of Legislative Decree 70/2003? And therefore to affirm that the provider is responsible?

Article 17 provides that the provider has no obligation of surveillance.

Article 16 provides that hosting providers are not responsible for stored information, if they are unaware of their illegal nature.

Providers are responsible, however, if they do not remove or fail to disable access to illegal information having previously received such a request from the relevant authority.

The crucial issue is: Who is it that defines the illegal nature of the information?

It should clearly not be the subject in whose interest it is to remove the information, nor the provider who may as a precautionary measure always choose to remove the information (even under the current law). It should therefore be a third party, namely a judge.

The most delicate aspects of the issue are of course proof of provider awareness and the definition of the illegal nature of the information.

 

2)The legislative policy profile: modifications to the norms

If it is decided that whoever even indirectly profits from publication of information should be held responsible, then the current laws should be modified and a juridical form should be adopted which is closer to that of the American Digital Millennium Copyright Act, in which effective awareness and the notice and take down system are considered.

The presiding judge in the Yahoo!’ case seems to have followed this example.

Italian jurisprudence seems to be trying to build up a scenario in which providers are responsible for content, although there are norms which rule differently. However, it is clear that legislative intervention is required.

 

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.

 

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