On 27 May the District Court in Cracow ruled that chomikuj.pl, a hosting provider with over 5 million users, is obligated, once a month, to monitor the Internet through keyword searches for content uploaded by users, with respect to three Polish films “Dzien swira”, “Katyn” and “Wenecja”. Chomikuj.pl will be required to block access to all pirated files which appear on the first five pages of the search results as files uploaded to chomikuj.pl. The main objection against chomikuj.pl was that it did not act as regular hosting provider, but it also encouraged users to upload files that will generate large amount of downloads. The ruling is not final yet and it is most likely that it will be appealed against to the Appellate Court.

Background

The case was initiated by the Polish Filmmakers Association (a copyright collecting society) acting together with two film studios and a film producer. The immediate cause for the action was the refusal by chomikuj.pl to block access to films illegally uploaded to their servers. Chomikuj.pl based its refusal on the assertion that the notices informing about the pirated films were not “credible”, which is the requirement under Polish law for effective exemption of liability for hosting providers.

The court not only finds this refusal unfounded and awards payment of damages to the claimant(s) but also calls for chomikuj.pl to recognize such notices in the future. Most importantly, however, the court compels chomikuj.pl to actively monitor the content uploaded by its users once a month for three years after the judgement becomes final. The monitoring should take place by way of keyword searches, with the use of the following combination of words: “chomikuj”, “[title of the film]” and “film”.

Reasons

At first glance, the judgement seems to be completely at odds with earlier CJEU’s rulings in the cases of SABAM v. Scarlet (C-70/10) and SABAM v. Netlog (C-360/10), as well as with the Directive on electronic commerce (2000/31) and its Art. 14 on hosting providers’ exemption from liability and Art. 15 imposing a ban on general monitoring obligations. Moreover, the decision seems to be also contrary to Polish law, which closely follows the wording of the Directive.

However, lawyers of the claimant argue that the judgment, although ground-breaking, is in line with Polish law, because the exemption from liability does not apply to chomikuj.pl. This view is based on the claimant’s argument that chomikuj.pl was not acting solely as a hosting provider. They claim that it was also actively encouraging the users to upload files by granting them points for number of files or size thereof downloaded from their accounts at chomikuj.pl by other users. Said points could be than exchanged for various chomikuj.pl services, such as raising the transfer limit or receiving special account status (which normally requires payment).

The written grounds for this controversial judgment have not been prepared yet but we will be monitoring the case.