In a previous posting (See here), I had referred to two ruling by the French Supreme Court (Cour de cassation) involving Google Video. In those rulings, the Cour de cassation overturned lower court decisions and held that online service providers such as Google are not, absent re-notification, required to take all measures to prevent the re-posting of infringing content that has already been the subject-matter of a takedown notice.
Another plea put forward by Google in these cases (which was rejected by the Court) related to the issue of liability for the act of public performance. Google argued that due to the way Google Video works (link provided by Google), the video at issue was not actually performed on its site but rather on the third-party site that hosted the content.
The Court rejects this argument:
"...the appellate court noted that Google companies allow the user, on the basis of links to other sites, to view the movie on their own Google Video France site, and [rightly] concluded that the Google companies implement an active functionality that allows them to appropriate the content stored on third-party sites in order to effect a direct performance on their on their pages for their own customers...". The Court further notes that in doing so Google goes beyond the provision of a mere technical functionality.
The issue of whether performance occurs in similar circumstances (embedded links) where the site does not actually host the content but is merely an intermediary is currently under consideration by the U.S. Seventh Circuit in the Flava Works case (see Flava Works).
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