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YouTube Internet liability might be impacted by the recent decision of the Court of Turin issued as part of an interim proceeding where it found YouTube not liable for the videos published on its video sharing platform by its users in breach of Delta TV Programs’ intellectual property exploitation rights.
The matter of the dispute is similar to previous cases. The holder of the copyrights on videos alleged that the company managing the video sharing platform is liable for the videos published on the platform by its users. And in this particular case, not only did Delta request the taking down of the challenged videos and the implementation of measures aimed at preventing further breaches, but also claimed damages in the amount of € 13 million.
The liability regime for hosting providers i.e. for entities hosting on their platform contents published by third parties (the users) is set out in the European E-Commerce Directive 2000/31. Such Directive is drafted on the understanding that Internet Service Providers are not able to check the massive quantity of contents published by their users and therefore they should not be obliged to monitor them and liable for them. However, once they become aware of the illegal contents they are obliged to take them down.
This principle led to different interpretations by Italian courts though. And indeed in 2009 the Court of Romeheld as part of an interim proceeding between RTI, the TV company of the Mediaset group, and YouTube relating to the videos of the reality show “Big Brother” that the liability exemption was not applicable to YouTube since the platform was providing services in addition to the mere connection to the Internet and performed checks on the contents published by its users.
Likewise, the court of Milan in 2011 held in a dispute between RTI and Italia On Line that the latter was deemed to be an “active” hosting provider in the management of the video sharing platform Libero.it because of the functionalities made available to users and the systems implemented. The consequence of such qualification was that Italia On Line could not rely on the liability exemption prescribed by the E-Commerce Directive in relation to videos published by their users.
In the dispute subject of this post, the Court of Turin did not take a position as to the final qualification of YouTube but only stated that – on the basis of the evidence available as part of an interim proceeding -YouTube could not be deemed to be an active hosting service provider. Therefore the liability exemption referred above was applicable to the company that had to remove contents only following a notification by the rights holder listing the URLs of the challenged videos.
Only as part of the proceeding on the merits the court will issue the final decision on the matter but certainly this current decision creates a precedent that is in contrast with the previous approach by Italian courts. We shall see whether the outcome of such decision will have an impact also on the dispute between YouTube and RTI where the latter claimed € 500 million of damages.
At the same time the European Court of Justice held in the dispute Scarlet vs. Sabam that Internet service providers cannot be obliged to put in place filtering system to monitor contents published by their users which according to YouTube’s lawyers would prevent the court from ordering to YouTube the implementation of any monitoring tool to review videos potentially in breach of Delta’s copyrights.
This topic is very interesting and it will be also interesting to see whether the approach from courts will be affected by the new regime managed by the Italian Communications Authority for copyright breaches on the Internet and as usual feel free to contact me, Giulio Coraggio (giulio.coraggio@gmail.com), to discuss. And follow me on my Facebook page, Twitter, Google+ and become one of my friends on LinkedIn.
