mercoledì, 20 Settembre 2017

The Italian Megavideo judgement on hosting and the clash with US practice

Scritto da  il 13 Ottobre 2016

The Tribunale di Roma on July 15th 2016, with decision number 14279/2016, ruled that ‘to publically make audio-visual contents of third parties available on a streaming platform which provides more than simple a stock service, cannot be qualified as hosting as defined by the Italian norm D.Lgs. 70/2003’.

The Italian judges confirmed an acclaimed legal position which requires an internet service provider (ISP) to obtain authorisation from the copyright holder of the materials it intends to use on its platform, before actually render those contents available.

In the case at hand the plaintiff, RTI (Reti Televisive Italiane), a subsidiary of Mediaset, claimed that Megavideo was: firstly, not engaging in a hosting activity, i.e. merely storing videos uploaded by its users; secondly that those users expectedly did not held any copyrights on those contents; thirdly that it had not authorised such use of its owned contents on the streaming platform.

Moreover, RTI claimed that in 2010 it had contacted repeatedly Megavideo with several takedown requests which were left unfulfilled. For these reasons, then, RTI went to Court seeking a reparation for the damages caused by Megavideo in that it infringed its broadcasting duties and engaged in unfair competition.

The Italian TV company claimed that Megavideo was not merely stocking the content of its users: according to RTI, Megavideo gained some economic advantages by allowing its advertising business to grow selling ads spaces and also by luring viewers into subscribing in order to have unlimited access to the contents of the site and in doing so it was undermining its safe harbour as a hosting provider.

The Italian Court, consequently, ruled that Megavideo had illegally distributed more than 16 thousands minutes of RTI contents conferring a fee of one thousand euros for each violation happened after the issue of the abovementioned takedown requests and for each day the contents had remained on the platform unauthorised; the overall amount of the compensation was appointed to 12,1 millions of Euro.

Thus, the Italian Court did not consider Megavideo as a hosting provider rather as a content provider whose editing activity did not relieve it from being accountable. This reasoning follows the Italian case-law: as stated in the previous RTI v Break Media case (decision number 8437/2016), again the Tribunale di Roma ruled that operators such as Megavideo are deemed to be content providers and therefore hold some responsibility in terms of tort (civil wrong) whenever they engage in organising activities, such as the subdivision of contents in subcategories, at least for negligence. According to the Court also a criminal liability can be detected from the behaviours of Megavideo as provided by article 171-ter letter a) and b) of the Italian law on copyright number 633/41.

A part from the accounts of Megavideo as a hosting platform, the most controversial point of the Italian ruling has been the part relating to the takedown notices requisites. According to the Tribunale di Roma it was essential for the notice to be valid that RTI warned Megavideo of taking the contents out of the site, by simply listing the concerned TV shows.

However, this starkly contrasts with the US Digital Millennium Copyright Act (DCMA); this act, by implementing two 1996 Treaties of the World International Property Organisation (WIPO), offers in Title II a safe harbour for online service providers and ISPs such as Megavideo: in fact, they are to promptly block access to alleged infringing material or remove such material from their systems when they receive notification of an infringement claim from a copyright holder or the copyright holder's agent, provided that such notices contain the URLs to easily identify the infringing contents and remove them.

Instead, the Italian Court went even further and ruled that ‘even in the absence of the takedown notices, the platform would have been able to identify the precise contents to remove because of the notoriety of the RTI programmes and in particular for the presence of RTI’s distinctive signs on all its TV programmes’.

This disregard for the US settled practices has been subject to some criticisms.
Mainly the Megaupload/Megavideo lawyer Ira Rothken in an interview with TorrentFreak[1] stated that the ruling might well be the cause of some serious concerns for other companies in the same sector. The fact that the Italian Court openly contradicted US case-law which allows ISPs to ignore takedown requests which do not contain a specific link, represents a real danger, according to the legal counsel. He goes on in assessing that, again according to the US jurisprudence, the duty to oversee on the use of the contents in a particular platform is upon the copyright holder and not the service provider. In fact, the ISPs have no duty to investigate on what content is infringing and what is not; hence, to ask the service provider to take down some contents only by listing their titles and not some specific redirecting links, is to ask such provider for the impossible. In such an event, Megavideo would have had to scan its databases for titles of videos that contained the same or similar words cited by copyright holders, an extremely inaccurate method of detecting infringing content in his words; in addition, he warns, such an activity would entail for the provider the need to watch the target video and thousands of cloud-stored videos and make ad hoc assessments on infringements vis-à-vis third-party works, fair use and licensed uses to avoid futile removals or copyright lawsuits. ‘This type of secondary infringement rule if allowed to stand arguably violates EU freedom of expression and copyright-related treaties, amongst other things’, he concludes.

However, the Tribunale di Roma actually cited a precedent of the European Court of Justice (ECJ) on the matter, the Google v. Louis Vuitton case[2]: here the Court ruled that article 15(1) of Directive 31/2000 by stating that ‘Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity’[3] does not preclude some sort of duty of surveillance on the part of the ISP whenever it has been informed of an illegal activity regarding some contents on its platform, as provided by article 14 (1) lett a) of the same Directive. In the cited case in fact, the ECJ ruled that ‘in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored (...) that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned.’[4]

Still, the most controversial issue at hand is the fact that the takedown requests with which RTI has made Megavideo aware of unauthorised contents being streamed on the platform, do not comply with the US consolidated practice of providing not a mere list of names of contents, rather additional URL links redirecting to the allegedly illegal contents, to render it easier for the ISP to remove or disable access to those.

Whether in the future such judgement may be the cause of some frictions or some concerns to other companies in the sector, as predicted by Megavideo legal counsel, is open to debate; what is clear is that the Tribunale di Roma has taken a strong view in assessing what can be included, and somewhat protected as a hosting activity, and what, instead, has to be lawfully punished according to national law. The fact that this reiterated stand taken by the Italian jurisprudence contrasts widely with the US approach may ultimately be the cause of some practical hiccups in the relations between the two States vis-à-vis the hosting activities; however, only the further development of the case law in both States can give an answer to that doubt.

[1]Available at https://torrentfreak.com/megavideo-lawyer-slams-tv-piracy-court-ruling-160720/

[2]Joined Cases C-236/08 to C-238/08 Google France SARL and Google Inc. v Louis Vuitton Malletier SA and Others, March 23rd 2010.

[3]Article 15 Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on E-Commerce), OJ 178/1

[4]Joined Cases C-236/08 to C-238/08 Google France SARL and Google Inc. v Louis Vuitton Malletier SA and Others, paragraph 120

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