Over the last few years various legal cases, both at international and national (Italian) level, dealt with the liability of Internet Service Providers (“ISP”) for the illegal conduct of the service users. We have discussed the issue here, here and here on this blog.
The typical situation is where authors’ rights are infringed by so-called pirated contents that are uploaded online by users of an online platform: the question is whether the ISP that provides the platform and the related hosting service can be held liable – along with the users – for such infringement.
The Business Chamber of the Court of Turin recently issued a decision on the topic in preliminary proceedings commenced by Delta TV Programs s.r.l against YouTube LLC (docket no. 38113/13). Delta TV claimed that episodes of some soap operas to which it holds exclusive rights were freely available to users on YouTube (www.youtube.com), and it requested that YouTube be enjoined from sharing them. YouTube defended itself, stating that it has no obligation to preventively monitor content uploaded by its users, and that it had promptly removed the contested contents after it acquired a list of URLs in which the contents were located.
The court concluded in favour of YouTube, rejecting the application for a preliminary injunction submitted by Delta, based on the following considerations:
i) in light of article 17 of legislative decree No. 70/2003 (implementing the E-commerce Directive no. 2000/31/EC) “there is no obligation for YouTube to preventively control that single persons, who upload videos on the memory space made available to them by YouTube, are the copyright owners”.
ii) article 16 of the aforementioned legislative decree No. 70/2003 provides that an ISP providing a hosting service, like YouTube, is not liable for the contents that are stored by users if it is not actually aware that the contents are illegal. In essence, “YouTube LLC would be liable only in cases where the company would have been informed about the illegality of the uploaded contents”, which had not happened in the case in question. Indeed, Delta TV had sent a warning notice to YouTube before the trial asking it to remove all the disputed contents. However, Delta TV had not indicated the URLs of the contents, but only the names of the soap operas, and that was not sufficient to bring forth the obligation to YouTube to remove the contents. Indeed, when YouTube became aware of the URLs (as indicated in the motion for an interim injunction of Delta TV), it duly took action and removed the contents immediately.
The order specifies that the considerations above stem from the assumption that YouTube provides a so-called “passive hosting” service and not “active hosting”: according to the decision, in fact, the hosting service provided by YouTube was not proven to be active in the preliminary proceedings. This is a reference to the interpretative line expressed by the Milan Business Chambers in previous analogous cases, which we have discussed here and here on this blog: the ISP providing the hosting service cannot be considered to be a “passive and neutral subject with respect to the organisation and management of the contents uploaded by users” (and thus it cannot enjoy the exemptions from liability under the above-mentioned articles 16 and 17) when it offers an active hosting service, i.e. it gets, from the organisation of the contents, “financial advantage because of the advertising exploitation linked to the (organised) presentation of the contents”. The Court of Turin points out that whether this applies to the case in question will have to be verified in the merits proceedings established between the parties, where it will be determined whether the hosting service provided by YouTube should be considered active or passive (and, as far as we understand from the text of the decision, if the active role of YouTube were proven, it could lead to a reversal of the decision).
Finally, the decision, having noted the removal of disputed contents straight after the beginning of the proceedings, addresses the question of the possibility to grant an injunction against YouTube for the future, ordering it to refrain from further sharing illegal content that may be subsequently uploaded by users. Also in this regard, the order rejects the demands of Delta TV, pointing out that, on one hand, they would go against the principle according to which ISPs do not have an obligation to monitor contents preventively; on the other hand, YouTube has developed a procedure (the so-called “Content ID”) to which the rights owners can join “through the transmission of the works that need protection, which would serve as reference files, suitable to intercept preventively uploading files that would violate copyright”. The Court states that this “appears to be a reasonable balance between the conflicting interests (on one hand, the position of the copyright owner, on the other hand, the need not to restrict the development of Internet services which, evidently, presume an automation mechanism, the governance and control of which, in turn, requires the use of specific protocols and methods of intervention)”.