Friday 14 September 2012

TF1 v. Video Sharing Platforms - Round 2

Yesterday, the Paris High Court (Tribunal de Grande Instance) handed down its long awaited decision in TF1's case against DailyMotion (which begain in 2007!).

Readers may recall that a similar case brought by France's leading broadcaster against YouTube ended in a debacle for the plaintiff (See here).

This time out, TF1 had a bit more luck and was awarded over €200,000 in damages (it had sought €80 million!).

On a more substantive level, however, it is hard to read the judgment as anything other than a victory for DailyMotion which saw its (all important) status as mere hoster for the impugned content confirmed by the Court.

The takeaway from the judgment:

- DailyMotion is, with respect to the content posted by its users (other than so-called official users and motion makers, with whom it has specific contractual relationships), a mere hosting entity, entitled, as such, to the specific regime of liability attaching thereto; functionalities such as a posteriori moderation and inclusion of a search engine do not alter this conclusion (although DailyMotion was ordered to remove the terms "TF1" and "LCI" from the list of suggested key words);

- the Court (as did the YouTube court) rigorously required the plaintiffs to establish its standing to sue with respect to each piece of content; in this regard, it is notable that reliance on the well-established rule that exploitation of a work under one's name creates a presumption of copyright ownership (see here) is not a panacea;

- DailyMotion incurred liability for failing to promptly remove content that was duly notified (and prompt means prompt - four days is too long) and for failing to take punitive acion against the most egregious uploaders of illegal content.

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