By Giancarlo Frosio on July 22, 2014 at 6:35 am
In the last few days, Italian courts have been busy tackling online copyright infringement and sanctioning platforms that allegedly facilitate infringement. A criminal court in Rome blocked access in Italy to several websites for copyright infringement, including Mega, the new Kim Dotcom’s cloud storage service, and the Russian Internet giant Mail.ru. Meanwhile, the civil Court of Turin issued an injunction forcing YouTube to proactively monitor its platform for copyright infringement for certain South American soap operas uploaded by users.
Let’s start with the most recent decision. Last week, the Tribunal of Rome ordered Internet Service Providers to block access in Italy to the ip addresses of 24 websites hosting copyrighted content without the rightsholders’ consent. Acting upon a claim of a small Italian independent distributor, the Italian authorities started a large-scale anti-piracy operation, labelled “Operation EyeMoon,” that lead to the injunction issued by the Roman court. The blocking order includes well known illegal movie streaming websites, such as cineblog01.net, cineblog01.tv, ddlstorage.com, divxstage.eu, easybytez.com, filminstreaming.eu, filmstream.info, firedrive.com, movshare.sx, nowdownload.ag, nowdownload.sx, nowvideo.sx, piratestreaming.net, primeshare.tv, putlocker.com, rapidvideo.tv, sockshare.com, uploadable.ch, uploadinc.com, video.tt, videopremium.me, youwatch.org.
However, surprisingly, the order also targeted Mail.ru and Mega.co.nz. Mail.ru is the most-visited Russian website and the largest Russian Internet company. It is as if the court blocked access to Gmail, Yahoo!, or one of the leading Italian portals and email providers like Virgilio or Libero.it. Mail.ru commented that the rightsholders “made no attempt to resolve the situation pretrial [ . . . ] No notification of illegal content or requirements to remove copies of films has been addressed to Mail.Ru Group from [Italian] law enforcement agencies." As for Mega, it is a new cloud storage service created by Kim Dotcom. Because Kim Dotcom is a cyber-villain par excellence, the Italian court must have reasoned that his new online service must not have any substantial non-infringing uses. In fact, despite Kim Dotcom’s bad reputation, Mega is just another cloud storage service like Dropbox, Google Drive or Microsoft OneDrive. Unlike the old MegaUpload, Mega does not include any “cyberlocker” features remunerating those users uploading files that generate high traffic. It may host infringing materials as any other cloud storage service.
Turning to the most recent Youtube affair in Italy, a few weeks ago, the Tribunal of Turin issued an injunction in favor of Delta TV against YouTube. Delta TV sued Google and YouTube for copyright infringement of certain South American soap operas that users had uploaded to YouTube. In this case, Google complied with its notice and take down policy, and the videos were removed as soon as the specific URLs were provided by Delta TV. Nevertheless the Court agreed with Delta TV’s claims, and ordered Google and YouTube to remove the infringing videos and to prevent further uploads of the same content through the use of its Content ID software (YouTube’s system for automatic detection of uploaded videos that infringe copyright) using as a reference the URLs provided by Delta TV. The Court stressed that these proactive monitoring obligations derive from the fact that YouTube is a “new generation” hosting service, a role that brought on it a greater responsibility to protect third parties’ rights.
This decision revised en banc a previous judgment of the same Tribunal, which actually seemed to take in greater consideration the exclusion of a general obligation to monitor networks for infringing activities by the intermediaries, as provided by European law and its national implementation. On May 5, 2014, the Court of Turin rejected the request of Delta TV on the basis that (i) there is no obligation on the part of Google and YouTube, as hosting providers, to assess the actual ownership of the copyrights in videos uploaded by individual users; (ii) the only liability hypothetically attributable to Google and YouTube relates to cases where they are specifically informed of the unlawfulness of the uploaded videos and have not removed them; and (iii) there is not sufficient evidence to consider Google and YouTube as “active hosts” (thus not shielded by the hosting defense of the E-Commerce Decree).
This growing Italian jurisprudential trend upholding harsh copyright enforcement measures against intermediaries is worrisome. It may produce chilling effects on innovation, especially on cloud storage and user generated content services.
The author wishes to thank F. Saverio Ligi for some of the background information included in this blog post. Mr. Ligi is an Italian attorney and can be reached at saverio.ligi at bakermckenzie.com.
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