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The Italian Court of Appeal overturned the recent decision of the Court of Rome reported in a previous post against Yahoo! on the Internet liability regime appliable to search engines relating to the alleged breach by Yahoo! of intellectual property rights through links to websites allowing the streaming view, the downloading or P2P transfer of the movie “About Elly”.
On the basis information currently available, the Court held that:
the limitation of liability introduced to the benefit of ISPs [i.e. the liability exemption prescribed by the E-Commerce Directive 2000/31/EC] is mainly aimed at avoiding a new case of objective liability [i.e. liability without negligence] that is not identified by the law or at least a contributory liability of providers to the unlawful contents published by third parties making use of the connectivity service of the ISP“.
Additionally, the Court also held that IP right holders – to be able to request the removal of the allegedly unlawful materials (i.e. the so called “take down“) – have to prove not only that they are the lawful holders of the rights on the copyright protected work, but they have also to identify the challenged links rather than providing a generic allegation relating to challenged breach.
This decision is interesting as not only covers topics relating to the Internet liability regime that had been already subject of previous highly discussed court decisions, but also because it comes only few days after the publication by the Italian Communications Authority of the new draft regulations aimed at introducing a notice and take down procedure for copyright breaches.
Will this decision have an impact on the position that the Italian Communications Authority will decide to take? If you want to discuss, feel free to contact me, Giulio Coraggio to discuss. Also, if you want to receive my newsletter, please join my LinkedIn Group or my Facebook page. And follow me on Twitter, Google+ and become one of my friends on LinkedIn.
