In our last article we were talking about cloud providers and their liability in case of copyright infringement. The understanding of the role of cloud providers in such context is an hot topic but legislators still seem to face a very hard time providing for a modernization of the current copyright laws.

In Italy a first attempt to make a step towards modernization was made by the Italian Communications Authority (Autorità per le garanzie nelle comunicazioni – hereinafter, “AGCOM” or “Authority”) which on March 2014 issued the Regulation concerning copyright protection on electronic communication networks (“Regulation”), thus providing for an alternative to the traditional judicial system of protection of copyrighted works.

In a nutshell, the Regulation introduced a procedure which is similar to the U.S. Notice and Take Down, whereby, upon the right holder’s notification, the Authority gives notice to the website manager, who could either spontaneously remove the infringing material or make a counter-notice. Should the website manager remain inert or send a counter-notice, the Authority will decide whether there are grounds to proceed. Should the proceeding before the Authority reveal the existence of an infringement, the Authority will order the removal of the infringing material should the relevant servers be located in Italy, or the blocking of the website in Italy should servers be located abroad (more details on the Regulation in this post).

Besides all the criticisms that surrounded and still surround the Regulation, the question is whether the measures provided by the Regulation could adapt to the most recent developments in the fruition of online contents. The biggest concerns regard the so-called one-click hosting services (better known as cyberlocker), a storage service which substantially enables the public sharing of files uploaded by users on the public cloud, and locker services, a dedicated storage service based on the fractioning of the public cloud in single portions per each user (see our previous post on the distinction between cloud providers).

With regards to cloud services, remedies such as the blocking of websites seems too harsh and not attentive to the dynamics of the market and the needs of those users that use cloud storage services in a lawful way. Evidence of this may be found in the recent “Eyemoon” operation, a major seizure which was actually conducted by the Court of Rome prosecutors and which resulted in the blocking of the access from Italy to the ip address of 24 cyberlocker hosting copyrighted content without the rights holders’ consent. The operation had a great resonance as, among others, it involved also the website Mega, the heir of the website Megaupload (which was shut down by the U.S. Judicial Authority due to copyright infringement). Differently from Megaupload, Mega was a mere cloud storage service with no “cyberlocker features” consisting in the remuneration for users uploading files generating high traffic, but that was contained, among lawful files, also some infringing materials. However, the Court of Rome’s decision was obviously detrimental also for those users who were lawfully using the website and found themselves unable to take advantage of a service which they are entitled to use.

Within this framework, AGCOM’s initiative seems to be still tied down to traditional enforcement mechanisms rather than providing for an effective modernization. The lack of clear and modern rules may produce chilling effects on innovation. Therefore, the need for an alignment of copyright protection with the dynamics of Internet is compelling and this is true not only at a national level, if considering the innate global nature of cloud services.