MySpace and Dailymotion have been held liable for infringement with respect to content posted on their websites by their users.

The Civil Court of Paris found MySpace liable in a summary judgment of June 22, 2007 and entered another judgment against Dailymotion on July 13, 2007, on the basis of the infringing content displayed on their websites, even though they are just storing providers and such content was directly produced by the users of these two sites.

In the first case, MySpace was held liable for the unauthorized publication of sketches by the comedian Lafesse, on the grounds that it generates revenues from the advertisements on its website, and is thus not just a storing provider but a “publisher and must accordingly assume liability”. MySpace does not therefore qualify for the limited liability regime provided under the Loi pour la Confiance dans l’Economie Numérique (Act For Trust in the Digital Economy) of June 21, 2004 (hereafter LCEN); on the contrary, it was held liable as a publisher due to the advertising revenues it generates on the infringing pages.

For its part, Dailymotion was sued for broadcasting the film “Joyeux Noël” on its website without the necessary authorizations. However, in this case, unlike in the MySpace case, the Civil Court expressly dismissed using the criteria of advertising as it considered that “the fact that it sells advertising space does not qualify Dailymotion as a content publisher”. However, in order to hold Dailymotion liable as a publisher, the Civil Court ruled that, while the LCEN does not require technical service providers on the Web to generally seek out unlawful activity on their sites, Dailymotion deliberately provided its users with the means to commit the offence in question and must therefore be held liable on this basis.

The consequence of these two rulings is that website operators now find themselves under a real surveillance obligation, whereas the spirit of the LCEN was to encourage technical service providers to be actively vigilant as to the content they hosted, without placing them under any surveillance obligation. Each platform is therefore considered to be fully liable for all of the content posted on the site, clearing the real offender from all liability. In this respect, neither the plaintiffs suing for infringement nor the courts mention such liability!

The reason for these decisions is probably the storing providers’ solvency but, at the end of the day, the rulings generate important insecurity for the providers and relative comfort for the authors of the offences.