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Monday, 18 July 2016

Rome Court of First instance confirms once again that takedown requests do not need to include URLs

Puzzling level of aggressiveness
in guy's expression
The Tribunale di Roma (Rome Court of First Instance) is back with yet another decision on the liability of online intermediaries (ISPs) for third-party copyright infringements.

After the decisions against video sharing platforms Break [noted here] and Kewego [noted here], this time it was the turn of streaming platform Megavideo [shut down in Italy since 2012] to be found ineligible for safe harbour protection pursuant to Article 16 of Decreto Legislativo 70/2003 [by which Italy implemented Article 14 of the Ecommerce Directive into its own national law]

The case is: Tribunale di Roma, Reti Televisive Italiane spa v Megavideo Ltd, decision 14279/2016, published 15/07/2016.

Background

In a decision published last Friday and made available and commented on very useful Italian IP resource Marchi&Brevetti, the Rome Court of First Instance put the word 'end' [at least for the time being] to yet another set of proceedings brought by RTI - Reti Televisive Italiane (owned by broadcasting company Mediaset) against a number of online intermediaries over the unauthorised making available of TV programmes it produces.

RTI had sued Megavideo before the Rome court seeking among other things: (1) a declaration that the latter, by allowing third parties to make available its own TV programmes, had infringed its broadcasting rights and committed acts of unfair competition [the latter claim was eventually dismissed]; (2) an order to remove and disable access to all TV programmes made available without its authorisation; (3) and damages for at least EUR 100m.

The defendant decided not to take part in the proceedings.

Why Megavideo is not a passive host

Further to a number of preliminary remarks, the court considered whether Megavideo's activity could be regarded as akin to that of a hosting provider within Article 16 of Decreto Legislativo 70/2003, so to benefit from the exemption from liability envisaged therein. 

The court ruled out that Megavideo could enjoy such protection, and did so for a number of reasons:

  • The files available on its platform could be streamed by an indeterminate and potentially high number of persons;
  • The contents available on its platform were organised in categories;
  • Megavideo engaged in an intensive advertising activity through banners of different types and formats, available within the home page and internal pages alike;
  • The advertising content varied depending on the geographic location of the user of the platform;
  • The platform allowed a limited viewing of the various contents: limitations could be however overcome by purchasing subscriptions advertised on the platform itself.
In particular [WARNING: Kat-translation from Italian and, yes, sentences in the judgment are this long]:

"It is clear, therefore, that the market of users, partly paid-for, and the market of advertising were a source of conspicuous revenues, which were closely connected to the content of the videos made available, as these served to attract clients with the intention of selling subscriptions and generating revenues through advertising and, ultimately, ensure the economic success of the platform. 
Hence, not a mere sharing platform, but rather a portal that allows easy and diversified choices, thanks to a simple consultation, of several videos and/or extracts of videos that are not casually uploaded by users, but are rather categorised and organised and linked to advertising messages, and are regulated by a series of rules through the "Terms of Service" [these made it clear that only users are responsible for the content they make available on its streaming platform].

The court concluded that Megavideo's activities could not be considered that of a passive host, but rather those of a "complex organisation of advertising and economic exploitation of [third-party] contents".

Nonetheless, no general monitoring obligation

This said, the court observed that even 'active' hosts are not subject to a general monitoring obligation. According to the court, this is in line with the decision of the Court of Justice of the European Union (CJEU) in Scarlet. Holding otherwise would result in an unacceptable restriction of freedom of information and expression and would prejudice the necessary balance that must subsist between copyright protection and freedom to conduct a business within Article 16 of the Charter of Fundamental Rights of the European Union.

Too shy to include URLs?
The (lack of) content of takedown requests

RTI submitted a number of takedown requests to Megavideo in July 2010 [apparently only indicating the titles of the TV programmes to be removed, but not also the relevant URLs]

According to the court, that moment signalled the beginning of the unlawful behaviour of Megavideo, "considering that the information included in those takedown requests was sufficient [really?] to allow the defendant to take action to prevent the continuation of the infringement of [RTI's] rights and also considering that, even without those takedowns, the defendant could easily and independently acquire knoweldge of such infringements, both because of the notoriety of the TV programmes in question and the relevant broadcasting chanels and, in particular, the presence RTI's distinctive signs on all TV programmes' extracts." 

Comment
After a thorough discussion of damages and their determination, the court found Megavideo liable of infringing RTI's rights (but not of unfair competition), and ordered it to pay damages for EUR 12.1m [slightly lower amount than what the claimant had requested].
There is not much new in this judgment of the Rome Court of First Instance: the court appears to have reinforced its approach to defining and determining ISP liability.
With regard to the absence of a duty of rightholders to indicate relevant URLs in their takedown, in its previous judgment in Break.com, the Rome court had gone as far as suggesting that envisaging such requirement would mean going beyond the requirements set under EU law. 
While it may be true that the Ecommerce Directive is silent in this respect, one may wonder whether the same is true with regard to CJEU case law. In its seminal decision in L'OrĂ©al, in fact, that the CJEU suggested [para 122] that safe harbour protections cannot be trumped by "notifications of allegedly illegal activities or information [that are] insufficiently precise or inadequately substantiated". 
It is therefore questionable whether a request to remove 'all' TV programmes could be considered sufficiently precise and adequately substantiated. 
But what do readers think?

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