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Yahoo! is a passive hosting provider obliged to remove copyright infringing material only following a detailed notice from the rights’ holder and without any filtering obligation in relation to future potentially infringing videos.
Internet law rules on hosting providers in Italy are adopting a completely different approach from what was the consolidated position a couple of years ago also because of the recent decisions of the European Court of Justice on the matter.
The decision of the Court of First Instance
The court of Milan in 2011 had ordered Yahoo! to prevent the broadcasting through its video sharing site, Yahoo! Video, of TV programs on which RTI was the copyright holder prescribing a penalty for the breach of such obligation.
The reasoning of the court at that time was in line with the approach adopted during the same period in the disputes involving YouTube and Italia On Line. Indeed, the court held that Yahoo! was an “active” hosting provider whose role was closer to a “content provider” because of the additional services provided through the platform. And, due to such qualification, the liability exemption for hosting providers prescribed by the EU E-Commerce Directive was not applicable to Yahoo!. Yahoo! was liable for the contents published on its platform and had to monitor them also in relation to videos that might be published in the future.
The decision of the Court of Appeal
A completely different approach has now been followed by the Court of Appeal of Milan which adopted a view that is much closer to the literal interpretation of the EU E-Commerce Directive on the liability of hosting providers.
Below is the position of the court:
1. No monitoring obligation
A hosting provider is not obliged to review the copyright ownership of the users uploading videos on their platform according to the court. A hosting provider is liable only when “either it participated to the uploading of the data or was informed of the unlawful contents of uploaded videos and despite of such notification did not remove them“. There is no monitoring obligation on them before the uploading of the material. There is only an obligation to remove the challenged material following a notification from the rights’ holder.
2. There is no active hosting provider
The fact that an hosting provider
- provides to its users a search functionality
- enables a number of functionalities of management of the site and
- gains an economic benefit
does not “transform” it per se from a “passive” hosting provider to an “active” hosting provider. Therefore Yahoo! could in any case rely on the liability exemptions prescribed by the E-Commerce Directive for hosting providers.
This is also in the light of the view taken by the European Court of Justice in the L’Oreal vs. eBay case according to which an hosting provider is “active” only when it cooperates with the user of the service with the purpose of performing an unlawful conduct. Yet, the concept of “active” hosting provider itself is misleading since this is a qualification that cannot be coupled with the activity of “hosting” third parties’ contents and would be triggered only when the provider changes such contents.
3. When does the take-down obligation arise?
A hosting provider is obliged to remove the challenged material following a mere notice from the entity that alleges to be the rights’ holder. However, in the case subject of the dispute the notice was not sufficiently detailed on the identification of the challenged contents and therefore no take-down obligation was arising. The burden of proof of identification of the challenged material is indeed on the rights’ holder.
4. No filtering obligation for future contents
As occurred in the recent decision involving YouTube, the court referred to the decision of the European Court of Justice on the SABAM case holding that hosting providers cannot be obliged to put in place a general filtering system relating to potential future breaches of copyright protected material.
What future for the liability of hosting providers?
The decision of the Court of Appeal of Milan is consistent with the most recent positions taken by Italian courts on the liability regime applicable to hosting providers. However, such position has not been “tested” so far following proceedings initiatied in Italy as a consequence of the newly introduced notice and take down procedure for copyright breaches.
This will be the “tricky” point on the matter and as usual feel free to contact me, Giulio Coraggio to discuss. Also, join my LinkedIn Group or my Facebook page, follow me on Twitter, Google+ and become one of my friends on LinkedIn.
