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Wednesday, April 27, 2011
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The decree regulating the issue of new Italian remote gaming licenses contains also some interesting surprises for operators. The sample of the gaming account agreement attached to the new license agreement to be entered by both the current licensed operators and by the new entrants in the market provides.

A GOOD NEWS: players will not be required to send to operators the executed copy of the gaming account agreement, but it will be possible to accept the agreement online through a "point and click";

A BAD NEWS: players will still be required to send to operators the copy of their ID; and

A VERY BAD NEWS: players will not be able to use payment vouchers until they have sent to the operator the copy of their ID.

The above might make payment deals less attractive for gaming operators, but in my view operators cannot however avoid the launch of payment tools easing the transfer of funds to the gaming account and the cashing out of funds by players. In a country where users are quite reluctant in providing their credit card details to the Internet providers, a payment deal appears still a crucial step for a successful operator.
Do you have a different view? Do you want to discuss the above? Feel free to contact me, Giulio Coraggio.
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Sunday, April 17, 2011
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The Advocate General of the European Court of Justice, Cruz Villalon, has issued a very interesting opinion on the possibility for courts to order Internet Service Providers (ISPs) to filter and block files infringing copyrights.
The background information is the following: Sabam, the Belgian association of authors and editors, brought a claim against Scarlet for the breach of copyright in the musical works that were shared without the consent from the copyright owners through P2P software by means of Scarlet's network. On the basis of that Sabam sought the issue of an order requiring Scarlet to block or make impossible the sending or the receiving by Sabam's customers in any way of files containing a musical work, using P2P software, without the permission of the copyrightholders. After a court decision supporting Sabam's position, the case was brought to the attention of the European Court of Justice.
Interestingly the Advocate General in his opinion on the case held that:

"the installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights".

The Advocate General added that the Charter of Fundamental Rights accepts a restriction to the exercise of the rights and freedoms only if such restriction was adopted "on a national legal basis which was accessible, clear and predictable" rather than through a mere court order.
It is worth it to say that the opinion of the Advocate General is not binding for the European Court of Justice, but if the same view will be followed by the court, it will be interesting to see its effect on the recent Italian court decisions involving Yahoo! and YouTube where filtering obligations have been ordered to such entities with reference to future copyright breaches.  

Are we close to a landscape decision that will affect the future case law on ISPs' obligations? It will be interesting the reaction from copyright owners to such opinion. Do you want to discuss about the above? Feel free to contact me, Giulio Coraggio. 
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Wednesday, April 6, 2011
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Life is getting harder and harder in Italy for search engines. After the recent dispute involving Yahoo!, the court of Milan has now issued another interesting decision on the liability of search engines with particular reference to a potential defamatory conduct arising through the usage of Google's service "suggest search".

Google "suggest search" service is a software that suggests terms potentially connected to a word that the user is typing on Google search field to ease the identification of the most appropriate search results. A user had noticed that when his name was typed in Google search field, the software was suggesting also the words "fraud" and "fraudster".

Such user alleged that such Google suggest search results were defamatory and therefore requested the Court of Milan to order to Google the removal in its "suggest search" software of the association between his name and these terms. The Court of First Instance deemed that the allegations from the user were grounded and issued an interim injunction ordering to Google the removal of the challenged suggest search results. 

Google challenged the decision of the Court of First Instance and the Court of Appeal held that:
  • Google suggest search software is a merely automatic software based on the most frequest searches performed by users,
  • Google in the provision of this service is an hosting provider for the purposes of the E-Commerce Directive 2000/31/EC (while the Court of Rome in the Yahoo! case had qualified search engines as caching providers) and therefore can be obliged to remove unlawful contents following a court order,
  • the association between the name of the user and the challenged terms derives from the usage of Google software aimed at optimising the access to Google search results and
  • Google is liable for the potential negative consequences of use of such software because Google's decision itself of using the Google suggest seach software and its mechanic of functioning.
In this context, the Court held:

"the software is only apparently "neutral", due to the fact that it is based on an automatic system of mathematic alghoritms, because it loses its neutrality when as a result of the applicability of such automatism based on criteria selected by its creator it generates inappropriate search results". 

Also, the Court held that:
  • Google is not required to perform a preventive monitoring of the inappropriate results, but only to correct inappropriate results when challenged by users, but
  • the inappropriate Google Suggest Search results were leading per se to a potential defamation.
This decision is interesting because it makes reference to Google as an hosting provider in the provision of Google suggest search service, while in my view this is a service provided by Google for which it cannot be qualified as an hosting provider. Therefore, the potential risk is that despite of the contents of this decision Google is obliged to monitor the suggest search results which would prevent Google from keep on offering the service.

Do you want to discuss the above? Feel free to contact me, Giulio Coraggio.

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Sunday, April 3, 2011
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The Court of Rome has issued a decision on the liability of search engines that will lead to considerable discussions. PFA Films S.r.l., as exclusive licensee of exploitation rights on the movie “About Elly” of the director Asghar Farhadi, brought an interim injunction before the Court of Rome against Google Italy S.r.l., Yahoo! Italia S.r.l. and Microsoft S.r.l. (as owner of the search engine Bing) because of the breach of their IPRs through links to websites allowing the streaming view, the downloading or P2P transfer of the movie without PFA’s consent.
The court dismissed the case in relation to Google Italy S.r.l. and Microsoft S.r.l. because the Italian companies of such groups did not have an active role in the management of the search engines. On the contrary, the court surprisingly deemed that:
  • Yahoo! in the management of the search engine is a caching provider for the purposes of the E-Commerce Directive 2000/31/EC;
  • Yahoo! was notified of the breach by PFA; and
  • the lack of removal of the links to the movie by Yahoo! following the notification of the breach made Yahoo! contributory liable for it.
As a consequence of the above, the court ordered to Yahoo! the removal of any link to the unlawful copies of the movie!
The decision is interesting for 2 main reasons:
  • this approach might oblige search engines to remove the access to contents following a mere notice from the alleged right holder; and
  • it extends the removal obligation not only to the links to the websites providing the unlawful contents, but also to other websites performing lawful activities, but containing links to such unlawful websites that shall be identified by the search engine.
This is one of the first Italian court decision on the liability for "linking" and triggers the question on what will be the future for the liability regime of Internet Service Providers in Italy. Also after this decision the interest for the upcoming results of the consultation from Italian Telecom Authority on the matter is increasing more and more.
Do you want to know more on the above? Feel free to contact me, Giulio Coraggio.
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Saturday, April 2, 2011
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Do you have some questions about the new Italian remote gaming licenses or the decree on casino and cash poker games? Here is an opportunity that you cannot miss! 
On the 13th of April I will cover these issues in a webinar and I will be happy to answer all your questions.
Feel free to contact me, Giulio Coraggio or visit http://www.italiawebinar.com/, if you need more information. 
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