Facts
Decision
Comment
A group of French television channels recently won a copyright infringement claim against Wizzgo, a provider of online digital video recording services. The Paris Court of Appeal has confirmed the Paris Tribunal de Grande Instance's previous judgment (for further details please see "Rise and fall of online digital video recorders").
Facts
Wizzgo launched a free online digital video recording platform in 2008 which allowed users to record television programmes on their computers and watch them at any time. However, the programme rights holders (ie, television stations) had given no authorisation for such recording and brought an action against Wizzgo. The judge ordered Wizzgo to discontinue its digital video recording services. Wizzgo also brought a legal action to obtain compensation due to the cessation order. The Paris Tribunal de Grande Instance rejected this claim.
Before the Paris Court of Appeal, Wizzgo argued that its service was the provision of a technological platform that generated a transient copy which the user then transformed into a private copy. According to Wizzgo, the recording of a programme was generated by user action. The recording was stored by Wizzgo for the sole purpose of being downloaded onto a user's computer. Consequently, the user would generate a private copy, as he or she was the one to originate and use the copy (covered by French law as an exception to exclusive copyrights), while Wizzgo generated only a temporary and transient copy, as meant by the exception provided by the IP Code. Once downloaded, the private copy would override the temporary copy.
Decision
The Paris Court of Appeal rejected the benefit of these exceptions. The court ruled that there was only one copy of the file which was created by Wizzgo's service. Therefore, the court rejected the benefit of the private copying exception, which requires that the copier and the user of the copy be the same person, as the copier (Wizzgo) was not the end user.
The court granted compensation of more than €1 million for copyright infringement and €10,000 for legal fees. Since Wizzgo entered into winding-up proceedings in 2009, these amounts will probably never be paid.
Comment
This decision is in line with previous case law, notably the Rannou-Graphie judgment of the Court of Cassation in March 1984. The court had ruled that a photocopying service store, by providing the means of copying, was the copier of the documents despite it not being the final user. Therefore, the private copying exception was not applicable.
This decision could apply to various services, notably cloud services that allow users to outsource their computer or telephone content so that it can be accessed from any other device. A cloud service provider which provides a storage space for users is in the same position, as it provides the necessary technology for copying and storage. Therefore, it could be qualified as a 'copier', despite not being the final user. In such a situation the cloud service provider would not benefit from the private copying exception.
The outcome of comparable cases in the United States has been different, where the judge has decided that each copy was made by the user.(1)
Despite a petition requesting an extension of the private copying exception to online digital video recording services, the law has not changed. Consequently, courts should continue to consider that any provider of services allowing the generation of a copy is a copyright infringer as long as it is considered the c but not the user.
For further information on this topic please contact Anne-Sophie Laborde at Nomos by telephone (+33 01 43 18 55 00), fax (+33 01 43 18 55 55) or email ([email protected]).
Endnotes