Our last webinar’s session focused on on-line media piracy, in particular on the legal issues raised by IPTV boxes, Vines and Virtual Private Networks (VPN) in various jurisdictions including Italy. The speakers were Ruth Hoy from the DLA Piper UK, Andrea Batalla for DLA Piper Spain, Andrew Bridges from the DLA Piper US, Jamie Ryder from DLA Piper UAE and myself for Italy.
First of all we discussed the VPNs, which enable a computer or network-enabled device to send and receive data across shared or public networks as if it were directly connected to the private network, while benefiting from the functionality, security and management policies of the private network. A VPN creates a secure tunnel between a device and every website or application online.
While there are a number of legal use of VPNs, according to the UK case-law these enable the user to infringe third parties intellectual property rights.
For example, in UK, in Football Dataco Limited & Ors v Stan James plc, Sportradar GmbH & Ors  EWCA Civ 27, Sir Robin Jacob stated “So the question boils down to this: if A has a website containing infringing material which will inevitably be copied into the computer of B if he enters that website, is A a joint tortfeasor with B? I am conscious that this question is important. The answer would seem to apply equally to copyright as to database rights. If the answer is yes, then the owner of any website anywhere in the world will be a joint tortfeasor with a UK user of that website if the inevitable consequence of access to that site by the user is infringement by that user. I would hold the answer to be yes. The provider of such a website is causing each and every UK user who accesses his site to infringe. His very purpose in providing the website is to cause or procure acts which will amount in law to infringement by any UK user of it. The case is not one of a mere facilitator, such as eBay or Amstrad where the choice to infringe or not ultimately lay with the consumer. Here Stan James is in reality responsible for the punter’s infringement“.
IPTV (Internet Protocol Television) is an internet TV in the form of streaming. Standard IPTV boxes carry 100′s of channels from multiple jurisdictions. The way the boxes work is with an Internet connection and the main part of the operation is called “Command and Control Server” that holds all the details related to the box.
Concerning the legal issues, IIPTV boxes provide access to multiple broadcast signals/content, some of which can be in violation of third party rights.
Legal actions focus on:
- Original “capture” of signal;
- Redistribution/retransmission of content;
- Command and control server;
- Communication to the public
- Chain of supply – joint tortfeasance/authorization?
Vine is a short-form video sharing service. Founded in June 2012, Twitter acquired it in October 2012, just before its official launch. The service lets users record and edit five to six-second-long looping video clips and revine, or share others’ posts with followers. Some Vines are revined automatically based on what is popular. The videos can then be published through vine’s social network and shared on other services such as Facebook and Twitter. Twitter recently announced 30 second variant. In a typical “vine”, User pauses live TV at key event, restarts source and records, Uploads to Vine. Upload takes a few seconds.
The legal issues posed by vines are similar to those analyzed above. It is to be considered whether the notice and take down systems currently in place in different countries will be effective, considering that in April 2013; 10’s of Vine’s were reported, one year after 100’s of Vine’s were reported and today 1,000’s of Vine’s are reported.
In March 2013 Prince (NPG Records) issued take down notice for the removal of eight videos featuring clips and synchronisations of his songs. In fact there can be reputational issues, as always for user generated content. Also, it can be argued that the vine is not a substantial part of the audiovisual work from which is taken, and therefore shall be considered fair use
And what about Italy?
VPN, IPTV and vines pose cutting-edge legal issues to be analyzed considering the latest development in Italian law and jurisprudence (LINK). In this regard, it is worth mentioning that in February 2015 the statistics on the application of the Italian AGCOM regulation, as well as the initial decisions released by the Authority on the application of the Regulation (link).
The AGCOM regulation appears to be an effective weapon against the violation of copyright, to be used also in the event this is committed through VPNs, IPTVs or vines. In this regard, in a recent decision taken in case commenced by FPM (The Federation against the Piracy in Music) vs. the web-sites mp3cool.eu and myfreemp3x.com, the applications were filed on 27-28 January 2015, on 30 January 2015, AGCOM opened urgent proceedings, informing the internet service providers, the owners of the websites and the hosting providers through the publication of an announcement on its website, and on 11 February 2015, as the defendants failed to file any defensive brief, AGCOM granted a blocking order to be enforced by all of the service providers operating in the Italian territory within two days from service of the order, through redirecting visitors to an informative webpage.
Another important development is a recent decision of the Court of Appeal of Milan, taken on 7 January 2015 by the Court of Appeal of Milan. According to this decision, while the distinction between “active” and “passive” hosting providers is misleading and was not envisaged neither in the Ecommerce Directive nor in the Legislative Decree implementing the Directive, a hosting provider is liable for contributory infringement in case it fails to remove the illicit contents after having notice of them.
It is therefore possible to conclude that in the event of use of VPNs, IPTVs or vines in violation of third parties intellectual property the providers of those services could be considered joint liable with user, at least from the moment they have been informed of the infringing use of the application. Also, the Italian AGCOM regulation can be used against any infringing use of those applications.