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Yahoo! does not have to remove the links to the copyright protected videos belonging to RTI available through the results of its video search engine since the Court of Milan held that in the provision of such service it is a caching provider rather than an active hosting provider as previously held with reference to Yahoo! Video.
RTI, the TV company of the Mediaset group, is the main actor of Internet liability disputes against video sharing websites and the saga against YouTube covered in this post was only the last episode of their battle against Internet service providers (ISPs) over the breach of their copyrights on their TV programs. However, here is a new Internet liability dispute between RTI and Yahoo! which is an heritage of a previous dispute occurred in 2011.
The 2011 dispute
The court of Milan in 2011 had ordered to Yahoo! to prevent the broadcasting through its video sharing site, Yahoo! Video, of TV programs on which RTI was the copyrights holder prescribing a penalty for the breach of such obligation.
The reasoning of the court at that time was in line with the approach adopted during the same period in the disputes involving YouTube and Italia On Line. Indeed, the court held that Yahoo! was an “active” hosting provider whose role was closer to a content provider because of the additional services provided through the platform. And due to such qualification the liability exemption for hosting providers prescribed by the EU E-Commerce Directive was not applicable to Yahoo!.
Yahoo! was liable for the contents published on its platform and had to monitor them. However, it is good to mention that the Internet liability regime applicable to Yahoo! in such scenario was affected also by the Ts&Cs of the site allowing the company to obtain a license on the videos published on the platform and to remove them at its discretion.
The 2014 dispute
According to RTI, the Yahoo! Video Search service was breaching the order of 2011 from the court of Milan linking and embedding videos available on third parties’ sites in breach of RTI’s copyrights as well as through its suggest search functionality. And on this basis Yahoo! claimed the payment of the penalties for the breach of the court order and in any case of the damages for the illegal conduct.
The court of Milan in this case however adopted a different view arguing that Yahoo! Video and Yahoo! Video Search are different services for the purposes of Internet liability regulations as the latter performed an activity to be qualified as caching for the purposes of the EU E-Commerce Directive. This was because Yahoo! Video Search was only listing the links to the searches performed by users and making an automatic cache copy of them only to render them more easily available following the users’ searches. And the same applies for the linking and embedding services as well as the suggest search functionalities.
The future of Internet liability regime
The Internet liability regime set forth by the court of Milan is compliant with the recent approach followed in another case involving Yahoo! mentioned in this post. On the contrary such decision seems more “liberal” than the solution adopted by the Court of Turin in a case involving YouTube.
We shall see the future approach from courts, but in the meantime 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.
