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Home / contributory infringement / Jeremy Phillips / search engine liability / Search Yahoo! for Elly? Not on your Nellie

Search Yahoo! for Elly? Not on your Nellie

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This is the film that has got
Yahoo! into so much trouble
All sorts of exciting things have been going on in Rome, if the IPKat's Italian eyes do not deceive him.  Of particular excitement is an historical decision of the Tribunale di Roma (that's the First Instance Court in Rome, unless you end up at some other forum) which was handed down on 22 March 2011. The Ninth Division of the Tribunale, it seems, was the first Italian court to hold a search engine (in this case, Yahoo!) liable for not controlling online piracy. According to the Kat's friend Eleonora Rosati (Bird & Bird), 
"The Court found Yahoo! guilty of aiding and abetting the infringement of copyright in the film 'About Elly' because, among the various results obtained by “yahooing” ‘About Elly’, links were displayed which led to websites that unlawfully offered the reproduction, as whole or in part, of the film (through streaming or downloading options). 
The Court (Mrs Justice Gabriella Muscolo) referred to Articles 14-17 of the E-Commerce Directive (as implemented in Italy by Legislative Decree 9 April 2003, No. 70) and Article 156 of the Italian Copyright Act (Law 22 April 1941, No. 633, as modified in order to implement the IP Enforcement Directive) and cited - inter alia - the decision of the ECJ in Google Adwords (Case C-236/08). 
The judge thus held Yahoo! liable for contributory infringement and ordered the search engine to pay the costs of the proceedings".
Another of the Kat's Italian friends, Gaetano Dimita, tells him that the reasoning of the court is not yet available, but that in any event Yahoo! has already declared that it will appeal. Gaetano also did a bit of empirical research:
"Interestingly, simply typing 'Abou' into Yahoo!, the engine suggested 'About Elly' -- providing the user with 10,300,000 links to websites making the film available. The extent to which this constituted 'knowledge' cannot be assessed without seeing the full reasoning of the judgment, but it seems that the Italian courts are increasingly prepared to find ISPs liable (ie vividawn v Google last year)". 
He adds that Open Gate Italia has declared that Google will be the next target and suggests that readers may wish to check out the reports of this decision in the Italian media:
• ANSA - Sentenza contro Yahoo, stretta su film
• Corriere della Sera - Pirateria di film in rete. Condannato Yahoo!
• Repubblica - here• Il Sole 24 Ore - Sanzionato il link al sito pirata
• La Stampa - Cinema, sentenza senza precedenti contro Yahoo! Italia
• L'Unità - Condannato Yahoo!: violazione diritti sfruttamento economico film
• Il Velino - Web, per “About Elly” Yahoo! può indirizzare solo al sito ufficiale
The IPKat thanks his friends for this information.  Merpel says, I tried keying in "Abou" into Yahoo! and ended up with Abou Diaby ...

"Not on your Nellie" here, here and here
Search Yahoo! for Elly? Not on your Nellie Search Yahoo! for Elly? Not on your Nellie Reviewed by Jeremy on Monday, March 28, 2011 Rating: 5

2 comments:

  1. DanTuesday, 29 March 2011 at 00:12:00 GMT+1

    I don't see how a search engine, which indexes the web by automated robots, can possibly comply with rulings like this, which require complex judgment calls to distinguish sites that make a film available for viewing/downloading and sites that just mention or review it, and determine whether any download/streaming of a film is authorized or not. Furthermore, the legality or illegality of a particular site's activity may vary by country, with different standards of fair use, different copyright terms and other rules, and different licensing status of a particular work. How in the world is Yahoo, Google, or any other such site to deal with this? It would be simpler for them to simply block all users from Italy so as not to be subject to that country's courts.

    ReplyDelete
  2. LassiTuesday, 29 March 2011 at 10:20:00 GMT+1

    First in Italy, OK. What about the rest of the world?

    ReplyDelete

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