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The Italian Supreme Court has issued a decision in a criminal proceeding against www.thepiratebay.org, a P2P website because of the breach of copyright laws through the making available to the public of copyright protected works. In particular the Court held that Pirate Bay is liable since it does not merely make available to users the transfer data protocol allowing the file sharing but:
“it indexes the information that are uploaded by other users so that this information – even if the activity of the provider is reduced to a minimum – is still essential for users to navigate through the website and find the files they are looking for, are developed and made available on the website, eg. by means of a search engine. In this case, the website ceases to be a mere “courier” who arranges the transport of data. There is a something more, as it is made available to the users of the website also a constantly updated index that allows users to find out the content of the files”
According to the Supreme Court, there is a contribution by the provider to the illegal conduct performed by its users since it facilitates its performance.
The Supreme Court also adds:
“it would be possible to argue the lack of involvement of the website to the the diffusion of the copyright protected work only in the extreme case in which its activity was completely “agnostic”, where, for example, even the indexing of the data is decentralized [i.e. it is not performed by the website, but by its users]. In this case there would be a community of users (a social network) that share a transfer data protocol and that index the data allowing the searching of their essential information. In such case, the material shared and made available for the transfer might be of different types (and not necessarily copyright protected) and the criminal liability would only apply to those users who carry out the uploading and and indexing of the data”.
The decision is relevant also because it clarifies that:
- Italian courts have jurisdiction on a foreign website even if the relative server is located abroad if the users downloading the copyright protected works are in Italy and therefore the illegal conduct is completed in the Italian territory; and
- the seizure of a website can take place through an order obliging Italian ISPs to block the access by Italian users to such website.
As a general comment, the position of the Supreme Court is quite surprising since it does not take into account that the E-Commerce Directive prescribes the general principle of non-liability of ISPs for the activity performed by their users and the absence of any obligation by ISPs to monitor their users’ activity. Also, the reference to the “indexing” of data appears excessively broad and subject to different interpretations.
If you want to discuss about the implications of this decision for your business, feel free to contact me, Giulio Coraggio.
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