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Wednesday, 7 May 2014

Italian court says that it's up to rightholders, not YouTube, to monitor

The hate & revenge
part of any
proper telenovela
Earlier this week, the Tribunale di Torino (Turin District Court) had some (interesting) say on the Ecommerce Directive and obligations of hosting providers, and was also keen on providing rightholders with some advice. 

It did so by dismissing Delta TV's application for an interim injunction against Google and YouTube.

Delta TV produces and markets TV programs. Among other things, it holds the economic rights to a number of South American telenovelas (soap operas) for a number of territories, including Italy, where it licences the relevant rights to third parties. 

Delta TV became aware that a number of episodes of such telenovelas dubbed in Italian [Delta is also in charge of the dubbing] had been unlawfully uploaded on YouTube. It also became aware that, by inserting the titles of the telenovelas on Google Search, the first results displayed links to such YouTube videos. 

Embarassed Balthazar has just been told
the titles but not also the URLs
of allegedly infringing videos: what to do?
Delta TV sued [and the case is still pending] Google and YouTube for copyright infringement and sought damages for over EUR13m. It also sought an interim injunction to have the videos removed from YouTube.

Google opposed the grant of the injunction, claiming that, as soon as it became aware of the allegedly infringing contents, it removed them from its video-hosting platform, in compliance with the obligations set for hosting providers by the Ecommerce Directive and the piece of legislation (Legislative Decree 70/2003) that implemented it into the Italian legal system. 

The Tribunale di Torino dismissed the request for an interim injunction. The judge held that from Articles 16 and 17, and recitals 42 to 48 of the Ecommerce Directive as interpreted by the Court of Justice of the European Union in its decisions in Cases C-70/10 Scarlet [here] and C-360/10 Netlog [here], it follows that:

a)  YouTube does not have any duty to determine in advance whether individual users who upload videos onto its platform have actually the right to do so. 
b)  The only case when a hosting provider such as YouTube may be responsible for third parties' infringements is when it has actual knowledge of the presence of illegal content or, upon obtaining such knowledge or awareness [according to the judge it is necessary that the rightholder indicates the URLs of the allegedly infringing content, not just the title of the works in which copyright has been allegedly infringed] it does not act expeditiously to remove or to disable access to the unlawful content. Furthermore, from a preliminary assessment it would look like YouTube does not exert any control over the information and content it stores, although this is something that the judge would decide at a later stage. 

Yoga and Ecommerce Directive:
the secret to a perfect equilibrium
EU and Italian laws forbid any obligation to monitor. According to the judge, should obligations of preventative control and filtering be imposed on hosting providers, this would negatively affect the broad diffusion of services which are based on the adoption of automatic uploading systems. These could actually not work in the current form. 

The point of (legislative) equilibrium, according to the judge, has been found in adopting an ex post control system and requiring relevant righolders to act timely to enforce their own rights. The judge stressed that rightholders are those who have an obligation to monitor unauthorised uses of their works.

Still according to the judge, to prevent future infringements rightholders may continue monitoring whether new allegedly infringing content is uploaded, or may participate in YouTube's ContentID program, which - he seemed to suggest - may be less stressful than staring at one's own computer screen all day long. 

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