With the judgment no. 1928/2017, issued on 7 April, the Court of Tourin ruled on the debated theme of online copyright infringement.
Popular “YouTube” platform owned by Google Inc., which allows anyone to upload audio/video content for sharing on the network, was held responsible for copyright infringement on the Internet.
In particular, Delta TV program s.r.l., holder of the exploitation rights on the Italian territory of 18 different Latin American telenovelas, found on YouTube telenovelas of its property ( “Topaz”, “Celeste,” “Legends of Passion “; Etc), so informed YouTube and requested their immediate removal. The Turin Court has ruled that YouTube, while not directly responsible for the uploading of the videos owned by Delta TV on the platform, evidently attributable to the initiative of YouTube’s users, once informed of the illicit presence of the same materials, did not provide for their removal in a timely and effective manner. Hence YouTube has been condemned to compensate Delta TV for the damage suffered as a consequence of the undue continuation of the offence.
The Court ruled that the damage suffered by Delta TV was to be quantified in € 250,000,00.
Entering the merits of certain technical profiles, the judgment deals with some of the ongoing issues and debated as to the responsibility of the ‘Internet Service Provider’ ( “ISP”), in the light of the current regulatory framework.
The current regulatory framework and the responsibility of the Internet Service Provider
In regulating the economic activities carried out through internet, in fact, the European directive m. 31/2000 (implemented in Italy by Legislative Decree. N. 70/2003), ruled that internet service providers (hosting) who make available digital spaces and provide for the storage of information owned by a recipient of a service are not subject to a general obligation to monitor the legitimacy of the information they transmit or store and are not responsible for any illegality of the information transmitted or stored by their customers. This exemption of liability operates only on condition that the provider is not aware of the fact that the activity carried out by the customer, or the information treated by the same, is illegal; and provided that, once aware of such facts, act immediately to remove the information or disable access.
The provider’s liability exemption finds its reason for being in the essentially neutral role played by the hosting, which by offering to the public a particular Internet service, does not intervene in the selection, preparation or processing of the materials processed by its customers and therefore does not actually participate in the illegal activities that the latter might put in place.
About the timeliness of YouTube video removal
Before commencing the trial, Delta TV had sent to YouTube a formal request of removal of illicitly loaded content placed by the users on the videosharing platform.
YouTube turned on it only a few months after receiving the notice.
However, the Court of First Instance did not consider that it had to censor the behaviour of YouTube since it acknowledged that the written request sent by Delta TV was inconvenient to enable the precise identification of the films to be removed, since it did not contain the mention of URL (Uniform Resource Locator) of the same movies.
The CTU (Official Technical Consultant) appointed by the Court of First Instance found that in the absence of such technical information it is impossible to locate on the platform the films to be removed; in fact, the titles of the telenovelas are mostly consisting of generic terms or adjectives (for example “wind of passions”, “Blue”) which, used in research of materials to be removed, give rise to false results or false positive.
Therefore, only through the URL (which indicates the location of the video without margin of error), it is easy to proceed with the subsequent creation of the hash value (MD5), which constitutes a sort of faithful “imprint” of the video allocated to it, so that it becomes a clearly identifiable element of its content.
It must be said that the theme of the “minimum” contents of the warning that the provider must transmit to the holder of the rights infringed to demand the removal of the offending material, is much debated in case law; in previous judgments the opposite principle has been stated, namely that the rightholder is not required to indicate the URLs of the materials he requests for removal. In affirming the need for a precise indication of the URLs, the Turin judges have moved from a concrete technical assessment of what is indispensable for the proper detection of illegal materials.
… about the effectiveness of removal
With the initiation of court proceedings Delta TV has eventually indicated to YouTube the URLs necessary to remove the illicitly loaded videos.
The Court of First Instance nevertheless found that the action taken by YouTube at that point, was unsatisfactory.
In fact, the videos have been obscured and made inaccessible on Italian territory; however, a user in Italy can still connect to a browser that simulates the connection from another country and thus accesses the obscured video, even from Italian territory. The paradox highlighted by the ruling is that the instructions to follow this procedure are made available and suggested by Google (owner of the YouTube platform).
The Court held that the videos would have to be removed by YouTube and not just obscured on the Italian territory, to reach a proper protection of Delta’copyright.
In addition, YouTube did not block the accounts of the users who had uploaded videos that were in violation of Delta TV’ copyright, thereby allowing them to continue operating, charging other illegal materials.
The Court therefore verified that the precautionary order which provided for their removal from the platform, had not been fully complied with and that, even after the judgment was opened, the abusive videos continued to be available; in this regard, the investigation has established that they are available on the market, and YouTube already has it, the means to prevent further loading of the same materials.
The damage quantified by the Court of First Instance
Finally, as regards the quantification of damages, Delta TV had shown in the € 13 million the damage suffered as a result of copyright infringement on telenovelas.
The amount thus indicated was determined on the basis of the total price of licenses for the exploitation of film works through: (i) free TV; (ii) exclusive pay TV; (iii) non-exclusive pay TV.
According to Delta TV, these licenses were to be considered as a benchmark in hypothesizing the hypothetical price of a license for the internet transmission in streaming.
However, the Court held that these figures were irrelevant, believing that, due to the different technical means, internet broadcasting refers to a totally different and non-homogeneous market segment than the internet market.
This remark leaves room to some objection, as in reality the two media (TV and internet) are increasingly contiguous and in some respects super imposable.
In liquidating the damage suffered by YouTube, the Court of Turin held that the quantification was to be made on the basis of the advertising revenue obtained by the users who had uploaded the abusive videos, assuming that YouTube had obtained at least double the amount.
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