With a decision rendered on May 5, 2014, the Tribunal of Turin dismissed a motion for preliminary injunction filed by a copyright holder in another case commenced against YouTube in connection with the upload and publication of allegedly infringing videos on the popular youtube.com website.
In the case at hand the motion was filed by Delta TV, owner of the rights related to the distribution and commercial exploitation in Italy of a number of South American telenovelas whose excerpts and extracts had been uploaded and rendered widely available over the internet through the Google-operated platform.
Significantly, the Tribunal of Turin held that YouTube fully qualified for the liability exemptions established under Articles 16 and 17 of the Italian E-Commerce Act (i.e. the Legislative Decree no. 70/2003 implementing EC Directive no. 31/2000), since YouTube could be retained to be only a “neutral” host provider with no possible preventive monitoring and surveillance obligations upon to the videos uploaded by its users. According to the Court, in fact, YouTube provides its video-uploading and sharing services “in a merely technical, automated, and passive manner” with no further intrusion in the upload and publishing process and no knowledge of the actual content of the videos.
In other words – and contrary to what previous Italian decisions had hold upon the matter – YouTube would not have to be considered as an “active” host provider, i.e. a provider having, on a strictly technical perspective, any direct involvement with the videos and control upon the same; this, in the eye of the Tribunal of Turin, would be true at least until no evidence is provided of the ISP’s actual knowledge of the infringing character of the uploaded content and therefore of the ISP’s active contribution in and to the users’ infringing conduct for the purpose of commercially exploiting the videos. In absence of such evidence, no liability can be established on part of the ISP for any alleged failure in preventively monitoring, filtering or blocking the hosted contents prior to their publication on the website and during their storage.
The Court also clarified that although, based on the above, a host provider like YouTube generally only has the ex post obligation to block and/or remove content after publication upon receipt of a sound notice and take-down request issued by the copyright holder, such notice should in any case necessarily contain an URL-specific list of the single links which direct to the allegedly infringing contents, being otherwise technically impossible for the ISP to engage in any kind of repairing conduct without a sufficiently precise identification of the infringing materials.