COPYRIGHT AND THE INTERNET – ITALIAN CASE LAW

Milan’s Court of Appeal rules that a hosting provider is not liable for copyright-infringing content uploaded by users, regardless of whether the content is organised and index-linked; the provider is obliged to remove infringing content only upon receiving requests that identify it precisely.

Milan’s Court of Appeal has ruled on the dispute between Yahoo! Italia and Reti Televisive Italiane S.p.A. (R.T.I.), reversing the decision in which the District Court of Milan had held Yahoo! Italia liable for the uploading on its portal of copyright-infringing video excerpts of TV programs.

The dispute turns on the applicability of the European Union’s Directive 2000/31, implemented into Italian law by Legislative Decree 70/03, that sets forth a liability exemption for providers acting merely as an intermediaries for the transmission of data. Providers are exempted from liability upon condition that their activity is passive, meaning of a merely technical and automatic nature, and limited to the technical process of activating and providing access to a network on which data uploaded by third parties are transmitted or memorised.

Facts in the case

R.T.I. sent a cease and desist letter asking Yahoo! Italia to remove from its portal (which no longer exists) a list of videos on which it claimed exclusive rights. Yahoo! Italia did not comply, and R.T.I. brought proceedings before the District Court of Milan.

The first instance ruling

The district court held Yahoo! Italia liable for infringing R.T.I.’s exclusive rights (read news item). The court found that although the videos had been uploaded to the portal by users, Yahoo! Italia had managed, organised and index-linked them, thus playing an active role to link the items to one another and exploit them commercially. Yahoo! Italia’s role, according to the court, had been an active one and the liability exemption intended for the mere hosting provider was therefore not applicable.

The appeal decision

In its judgement No. 29 of 7 January 2015, the Milan Court of Appeal held that the district court had erred in finding that Yahoo! Italia’s behaviour was to be considered that of an active hosting provider.

According to the court of appeal, the mere presence of sophisticated techniques to monitor the content of uploaded files, the use of various content management systems and the provider’s interest in making a profit from the web site itself are insufficient grounds for finding that the nature of Yahoo! Italia’s service was not that of a passive hosting provider.

To this regard, the appeal decision analyses Community law and case law, finding that several judgements of the Court of Justice of the European Union, including C-324/09 L’Oreal – eBay (read news item), consider the liability exemption applicable to hosting providers performing much more complex activities that those carried out by Yahoo! Italia.

The appeal decision also points out that: a) the hosting provider is obliged to remove offending content from the web site, or disable access to it, as soon as it is notified of its presence on the web site; b) the hosting provider has no obligation to monitor.

Therefore Yahoo! Italia had no obligation to act upon receiving a letter with a generic list of offending content to be removed, without a precise indication of the URL for each offending item. The burden of identifying the offending content precisely was on R.T.I., also in view of the public nature of the portal on which they had been uploaded.

The first instance court had erred in expecting the manager of a technological platform running automatic procedures to search and extract content generically listed in a letter.

Moreover, the appeal judgement acknowledges that during proceedings Yahoo! Italia had acted promptly upon receiving from R.T.I. the data necessary to identify precisely the offending files.

The decision may still be appealed, and according to the press R.T.I. intends to do so.