The Court of Turin has recently found that YouTube and Google (the video-sharing platform’s owner) were liable for the infringing copyright works uploaded by a third party.
Delta TV Programs s.r.l. (‘Delta’) had commenced proceedings against YouTube LLC (‘YouTube’) and Google Inc. and Google Ireland Holdings (collectively ‘Google’) for infringement of their copyright works which had been uploaded to the video-sharing platform by a third party. The works purportedly infringed were episodes of a South American television series, in which Delta owned economic rights in Italy, as it dubbed episodes of this series in Italian.
By virtue of Article 16 of legislative degree No. 70/2003 (which implements the E-commerce Directive No. 2000/31/EC) an ISP providing a hosting service, such as YouTube, is not liable for infringing content stored by users if it not actually aware that the content is illegal. The ISP only becomes liable in cases where it has been informed about the illegality of the uploaded content. In this way, YouTube was considered to be a ‘passive hosting’ service as opposed to an ‘active hosting’ service.
In this case, the obligation on YouTube and Google to check and remove infringing content had only arisen with the service of the writ of summons which contained the exact URLs of the infringing content, rather than previous cease-and-desist communications which were more general in the nature of their complaint.
It was found that a legal obligation existed for YouTube to actively monitor and prevent new uploads of videos which had already been reported as infringing and removed. It was noted that the videos in question had not been removed but only obscured by YouTube and Google so that the content was in fact still visible from abroad and from within Italy if users could simulate usage of a foreign connection.
On this basis, the Court of Turin confirmed the liability of YouTube and Google for failing to take appropriate action. YouTube and Google were ordered to remove the infringing content from the YouTube website, prevent its future upload, and pay Delta damages for a total sum of 250,000 euros.
This decision seems somewhat at odds with a decision given by the Higher Regional Court of Munich, Germany back in January 2016 where YouTube was held not to be financially liable in Germany for copyright works uploaded to the platform.
This is a useful decision for IP owners and should allow them to expedite the process of removing infringing content from the YouTube platform. Nevertheless, it may create a headache for these multibillion-pound ISPs to ensure that once they are notified of infringing content they act quickly to remove it, and actively monitor to prevent the content being re-uploaded. This is no small task given the sheer volume of material uploaded to the YouTube site every day, with over 300 hours uploaded every minute (some 7,200 hours of footage each day!).