With a ruling issued on 10 January 2019 the Commercial Court of Rome ruled in favor of R.T.I (a Mediaset Group Company) in the lawsuit against the US based company Vimeo LLC, which was condemned to pay € 8,5 Mln and the related Court costs for the illicit exploitation of R.T.I’s works on its platform.
The facts go back to 2011 when Mediaset convened Vimeo LLC in Court to ascertain its responsibility for allowing the diffusion of videos for which R.T.I had the exclusive rights of exploitation. R.T.I had sent multiple warnings to Vimeo LLC outlining the programmes which were violating its exclusive rights and identifying, by way of example, the URLs of some of the programmes illicitly present of the platform. Following this R.T.I claimed Vimeo LLC was violating its exclusive property rights and couldn’t be considered a “merely” passive hosting provider as per Art. 14 E-Commerce Directive (2000/31).
The Commercial Court of Rome issued the following reasoning:
- Vimeo LLC must be regarded as an “hosting provider” playing an “active role”
Vimeo LLC claimed it was a passive hosting provider because the system used to classify, tag, categorize and index videos, in order to improve the users’ experience, was carried out by an automatic software. The Court rejected this claim on the basis that the extremely advanced technology of the software, deployed to organize and exploit the videos, contradicts the very nature of a “passive hosting provider”. From the evidence provided the Court concluded that the Vimeo platform, which also provides a search engine to facilitate the users’ experience, is comparable to a video-on-demand service where AV content is catalogued and indexed.
- The identification of the URLs doesn’t detect the illicit videos but only the places where these videos can be found
The Court affirmed that the URLs aren’t needed to identify an illegal video, as these only provide an indication of the place where such video can be found. In fact, no collaboration imposing the burden on the Right-Holder to indentify each and every URL on the platform is required by the relevant regulatory framework. Communicating the titles of the TV-programmes and the brands of TV-Channels is enough to expect from the platform, which should act as a diligent economic operator, the removal of the illegal content (see CJEU Case C-324/09 L’Oréal and others).
- The video fingerprinting technology, such as “Copyright Match” and Audible Magic currently used by Vimeo LLC, was already available at the time and is still the most effective tool.
The technical analysis carried out by the Court of Rome showed that the video fingerprinting was at the time, and still is, the most reliable technology for the ex-ante and ex-post control of videos on a platform. As the technology allowed it the Court concluded that a more diligent ex-post check and control over the videos identified by R.T.I would have been expected by Vimeo LLC. Therefore, the Court concluded Vimeo LLC didn’t take the measures that were reasonably expected to impede the making available on its platform of the illegal videos.
Following the above the Court:
- Ascertains Vimeo LLC’s violation of Article 78, ter and 79 (corresponding to article 3, par. 2 Directive 2001/29/CE) of the Italian Copyright Law (“Legge Diritto d’Autore”, LDA) for the missing prompt removal of the videos identified in the written warnings and technical reports.
- Orders Vimeo LLC to immediately remove the content related to the identified TV-programmes from its platform, prohibiting any future publication.
- Condemns Vimeo LLC to compensate R.T.I for the damages in relation to the illegal videos present on its platform as follows:
- Vimeo LLC is condemned to pay € 8.500.000,00 and related Court costs;
- Vimeo LLC will have to pay € 1.000,00 for any future violations and €500,00 for each day of delay in removing the illegal content.
The decision is in line with the jurisprudence of the European Court of Justice, especially with the judgement 14.6.2017, Case C‑610/15, Stichting Brein v Ziggo BV.