http://ipkitten.blogspot.com/2019/07/rome-court-finds-videosharing-platform.html

A few days ago, the Rome Court of First Instance (Tribunale di Roma) issued what might be one of the first, if not the first decision (RG 24711-2012, decision 14757/2019) in Europe, which has found a hosting provider – other than piracy-focused ones like The Pirate Bay – directly liable for content uploaded by users of the platform. 

This decision presents a number of key issues in that it: 
  • found that a hosting provider (Dailymotion in that case) would be directly liable for content uploaded by its users; 
  • used an equitable criterion to calculate damages based on what would be the ‘price of consent’ (prezzo del consenso), that is the price that a wannabe licensee would pay to a rightholder to display content to which the latter owns the IP rights (in this case, over EUR 5.5 million); 
  • imposed filtering and monitoring obligations on the platform, so to prevent any future uploads of the content subject to the proceedings.
    What is this case all about?
    Let’s see more in detail how the Rome court reasoned. 

    Unavailability of the safe harbour for hosts
    Unlike previous decisions concerning Dailymotion in France and Italy, the Rome court excluded the availability of the safe harbour provided for in Article 14 of Directive 2000/31/EC (E-commerce Directive) and the Italian provision transposing it, finding that Dailymotion would be an ‘active’ host. 
    In so doing, the Court stated that the safe harbours (also for mere conduit and caching providers) require the fulfilment of two requirements: 
    1. First, the provider at issue must be an information society service provider as defined in Articles 12, 13, or 14 of the E-commerce Directive; 
    2. Second, the content provided by users of the provider’s service must be lawful (the latter is quite an odd requirement set by the Rome court, as the safe harbour apply when the content uploaded by users is actually unlawful) 
    Then the court reviewed relevant case law of the Court of Justice of the European Union (CJEU), in particular, the decisions in C-521/17 SNB-REACT (commented on The IPKat here), C-324/09 L’Oreal and C-610/15 Ziggo (commented here)

    Direct liability of platform operators
    Somehow, the Rome court overlooked to consider that it is unclear how to interpret the concept of active/passive hosting provider and it is still uncertain whether the conclusion in Ziggo, that is that the operators of The Pirate Bay would be directly liable for the doing of copyright-restricted acts, could extend to the operators of other platforms. 
    Currently, there is a case (C-682//18 YouTube) pending before the CJEU concerning the direct liability of YouTube (a platform similar to Dailymotion) (see here), and a new case (C-442/19 NSE) concerning the direct liability of platforms for the doing of acts of communication to the public and the availability of the safe harbour in Article 14 of the E-commerce Directive was also referred a few days ago.
    A request was made in the Rome proceedings to refer the case to the CJEU for guidance, but the Rome court refused, finding that no interpretive doubt would subsist.
    Calculation of damages
    In addition, the Rome court calculated the damage caused to the claimant by the defendant’s activities using an equitable criterion: the damage would correspond to the price of an hypothetical licence that the platform would need to secure to display each and every content published by the users of the platform, also considering the time that the uploaded content would remain visible on the platform (cf this Swedish decision that rejected the criterion of a hypothetical licence fee; also other decisions in Italy excluded that this would be a good criterion: see here and here). In other words, it would be the price per minute (EUR 695) of a licence to display content. Such price would need to be paid not from the moment when the platform was notified of the unlicensed content uploaded by users, but rather from the moment when the infringing videos were first uploaded.
    Filtering and monitoring
    In relation to the final point above, in fact, the Court considered that, since Dailymotion would do some voluntary filtering in relation to certain types of content, there is no reason to hold that the same platform could not do some preventative filtering in relation to content that would infringe third-party copyrights. In so doing, the court seemed however to overlook that providers do not have any obligation to filter and monitor the content transmitted by users of their service.
    In addition and in any case, the Court found that the rightholder did not have an obligation to provide the URLs for the content that the platform should remove in its takedown requests, in that the indication of the simple title of the TV program at issue would be sufficient. The issue of how precise a takedown request has proved contentious in Italian courts: see here.
    Conclusion
    The Rome Court found that Dailymotion would not qualify as a hosting provider eligible for the safe harbour, but would rather have direct responsibility and be – as a result – directly liable for the content uploaded by its users. The additional consequence is that it would need to be treated in the same way as a publisher, with the difference that, while a publisher could choose what to publish, at present Dailymotion cannot … if not by implementing strict filtering and monitoring criteria.

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