We are grateful to one of our Italian friends for sharing with us the following information about a surprising decision of the Italian courts:
Yahoo! is responsible for all the copyright infringements in relation to unauthorized links: the caching providers’ responsibility PFA Films, an Italian production and distribution company, legitimate owner of all of the exploitation rights of the film “About Elly”, has summoned Yahoo! Italia S.r.l., the service provider, asking them to remove all the links and files unauthorized by PFA in connection to the film ”About Elly”. Surprisingly the Court of Rome agreed on the request and ordered Yahoo! to disable all the websites which allow the web surfer to watch the film or just some pieces of it in streaming, downloading or peer-to-peer. The judge basically says that only the official film website is lawful while all the others are illegitimate.
The decision is really astonishing and probably it will be the beginning of a new trend. The judge indeed is very precise in the description of the facts and in focusing her attention in the interpretation of the law. She carefully referred to the legislation and to the interpretation of Italian courts in relation to the service providers’ responsibility. She rightly referred to art. 14, 15, 16 and 17 of decree 9/4/2003 n.70 and to the European Court of Justice (CGE C236/08 and C238/08) [the Google AdWords case] . She defined Yahoo! as a caching provider, which is responsible just for removing all the illegitimate links, only the ones that are brought out to its attention. So Yahoo! was responsible because it did not remove all the pirate links, yet PFA Films did not provide any lists of websites asking in such a general way for Yahoo! the clearing of every content reproducing all or just part of the film “About Elly”. The conclusion is a bit complicated to understand and takes the distance from the other previous decisions on he matter. Yahoo! must not previously verify the contents of the websites to which it links because it does not have any legal obligations to identify the contents previously, yet, just after a general warning notice by the owner of the exploitation rights of the audiovisual aids, it is responsible for removing all the pirate links or audiovisual files, because the official website of the film is the only one which is legitimated to show all or part of the film.
The decision is really astonishing and probably it will be the beginning of a new trend. The judge indeed is very precise in the description of the facts and in focusing her attention in the interpretation of the law. She carefully referred to the legislation and to the interpretation of Italian courts in relation to the service providers’ responsibility. She rightly referred to art. 14, 15, 16 and 17 of decree 9/4/2003 n.70 and to the European Court of Justice (CGE C236/08 and C238/08) [the Google AdWords case] . She defined Yahoo! as a caching provider, which is responsible just for removing all the illegitimate links, only the ones that are brought out to its attention. So Yahoo! was responsible because it did not remove all the pirate links, yet PFA Films did not provide any lists of websites asking in such a general way for Yahoo! the clearing of every content reproducing all or just part of the film “About Elly”. The conclusion is a bit complicated to understand and takes the distance from the other previous decisions on he matter. Yahoo! must not previously verify the contents of the websites to which it links because it does not have any legal obligations to identify the contents previously, yet, just after a general warning notice by the owner of the exploitation rights of the audiovisual aids, it is responsible for removing all the pirate links or audiovisual files, because the official website of the film is the only one which is legitimated to show all or part of the film.
This takes the present UK discussions about a site-blocking remedy to a completely different place and is no doubt not the last word on this subject.
2 comments:
Thanks Claudia! It would be also great to have the link to the original ruling by the Rome Tribunal.
This is interesting and troublesome. There is likewise some confusion in France as rulings are not perfectly consistent with regard to the obligations of the service provider. After obligations to "take down" content, "stay down", there is what I like to call some sort of a duty to "keep off" content - which is most of times not reasonable to ask for.
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