Italian Courts find 'active hosting liability' for ISPs

Our good Friend from the City University, Dr. Enrico Bonadio, has kindly sent us details of the link to a brief case note which Enrico co-authored with his colleague Mauro Santo, and which has been published in the Journal of Intellectual Property Law & Practice.

As Enrico explains "It is a comment of two decisions of the Court of Milan in case of copyright liability of Internet Service Providers: In June and September 2011 the Court of Milan released two interesting decisions in the field of liability of Internet Service Providers for copyright infringement committed by their users. In particular, the Court found that the Internet Service Providers Italia On Line and Yahoo! Italia were liable for copyright infringement in connection with the uploading of several videos on their platforms and that they could not rely on the hosting provider exemption under the E-Commerce Directive. The two decisions are particularly interesting as the Court of Milan ‘created’ from scratch a new category of internet service provider liability: so-called active hosting liability."

If you want more on this topic, you need to take a look at the ever excellent Journal of Intellectual Law & Practice

This is the SSRN link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1977431

For a Spanish take - and a rather different approach - have a look at http://www.billboard.biz/bbbiz/industry/legal-and-management/is-pablo-soto-spain-s-p2p-robin-hood-or-1005743952.story with the Spanish courts finding no liability for software developer Pablo Soto for the in fringing uses made of his software - as Spain's new Government struggles to implement the so called "Sinde" law it inherited from the previous government in the face of public opposition.

Smoking pipes and other copyright tales

To the USA first, where the Recording Industry Association of America (RIAA) have announced that they will appeal a federal judge's reduction of a file-sharing copyright damages award from $675,000 to $67,500 in the Joel Tenenbaum case. The original award ordered the Boston University student to pay $675,000 in copyright infringement damages for sharing 30 songs online. Earlier this month, U.S. District Judge Nancy Gertner ruled that amount unconstitutionally excessive, and reduced it by 90%. Similarly the copyright infringement damages award of $1.92 million that a jury ordered defendant Jammie Thomas-Rassett to pay has been reduced $54,000, although that case appears headed for a new trial on the issue of damages.

An to Germany for another turnaround: In Dusseldorf the appellate court has overturned a lower court's order that free file-hosting service Rapidshare must install a keyword filter to block the sharing of copyrighted media. The lower court issued a preliminary injunction against Rapidshare last year, after film distributor Capelight Pictures sued the site when copies of its "Insomnia" and "Inside a Skinhead" movies were made available for download from the service. The lower court ordered Rapidshare to filter words such as "insomnia" and "skinhead". The Higher Regional Court of Dusseldorf has now ruled that more advanced filter that used full film titles cannot be used - noting that the words could wrongfully remove users' private copies of the films, which are permitted under German law. The court also said Rapidshare is not obligated to pursue those who distribute links to unauthorized files hosted on it service.

Finally to Eire where Irish ISP UPC has said that it will continue to “vigorously” defend itself against liability proceedings taken against it in the Eire's courts by content owners. The company is the latest in a series of ISPs to take issue with copyright holders' insistence that they police customers' Internet traffic. Ireland's biggest ISP, Eircom, was successfully taken to court by the IRMA (Irish Recorded Music Association) and is currently sending warning letters to customers who have allegedly infringed copyright through illegal downloading using the IP addresses of alleged infringing customers which are supplied by IRMA. UPC said that it does not condone piracy, but considers that "there is no basis under Irish or European law requiring an ISP to monitor or block subscriber traffic on its network" – although in France and the United Kingdom there are the new, and much criticised, "three strikes" laws – the French HADOPI law and the Digital Economy Act in the UK – the French law has already faced legal challenge and as previouslt reported, the UK law is about to face a judicial review.

http://www.zeropaid.com/news/90025/riaa-appeals-reduction-of-tenenbaum-p2p-judgment/
http://arstechnica.com/tech-policy/news/2010/07/german-court-overturns-injunction-against-rapidshare.ars
http://www.pcworld.com/businesscenter/article/201767/isps_battle_against_threestrikes_rule_throughout_eu.html

The Pirates launch a ghost ship

Well, in yet another twist in the ongoing saga of The Pirtate Bay, it seems the political 'wing' of the 'movement' has a new wheeze. Having had a number of court judgments ordering ISPs to block access to the rogue bit-torrent tracker site and/or give up details of users who infringe, now we have an all new gleaming pipe that allows anyone to connect with anything - courtesy of - ahem (and drum roll pelase) THE PIRATE BAY!

The Inquirer describe the new service thus "The Pirate Party has created an ISP, dubbed PirateISP, based in the Southern [Swedish] city of Lund, a place well known for its 42,000 academic community, and will provide high speed internet connections to the anonymity seeking masses". The new service appears to undercut local rivals by about 50%.

PSFK says this "the Pirate Party looks to refashion Internet privacy regulations by starting an anonymity-based ISP. By cloaking online activities, the progressive group aims to advance their political mission to ensure that citizens’ rights to privacy are respected. Henrik Pontén, the Swedish Anti-Piracy Bureau agent who led the raid against The Pirate Bay, indicated that police requests for Internet activities from ISPs must be lawfully fulfilled. However, Pirate Party’s ISP intends to keep no logs of online activities to give out" adding "By [the] summer’s end the world will be closely monitoring Sweden’s privacy debacle.

http://www.theinquirer.net/

Telenor: Two battles won, but what about the war?

Readers of this weblog may recall the refusal of a Norway District Court last November to order ISP Telenor to block its customers' access to The Pirate Bay's file-share website (see earlier post on the 1709 Blog here). Well, here's the sequel, supplied by Telenor's legal representatives, the illustrious law firm of Wiersholm, Mellbye & Bech. Read on:

"Background

During the spring of 2009 the music and film industry submitted a preliminary injunction suit before the Norwegian courts, demanding the ISP and telecom provider Telenor would to shut down access to The Pirate Bay website for its customers. The Pirate Bay will be familiar to many readers, it being the Swedish website which allows users to upload, search for, and download torrent files. The BitTorrent-technology allows torrent files to be used for peer to peer file sharing, meaning that the file sharing takes place directly between the downloaders. The Pirate Bay does not store any of the content downloaded by the users of the website.

The Swedish court held that the persons behind The Pirate Bay were guilty of copyright infringement. The Pirate Bay provides a website to the file sharers with “well-developed search features, simple upload and storage” features, and “by arranging contacts” between individual “pirates” through the “site linked tracker”, the Swedish court held that the defendants facilitated and promoted copyright infringements.

The Norwegian injunction case was based on a different fact to that in the Swedish case. In short, the music and film industry claimed that Telenor contributed to illegal copyright infringements by allowing its customers to access The Pirate Bay.

Telenor stated that even though it does not support and has no sympathy whatsoever with copyright infringers in general, and with The Pirate Bay in particular, the mere act of providing the infrastructure of the Internet does not render it liable for copyright infringements such as illegal file sharing. Telenor explained that if it, as an ISP, were to be obliged to block access to The Pirate Bay, it would in principle be obliged to block any other website which is deemed to store infringed content. Telenor further held that the current case is a not another “The Pirate Bay case”, but a case which deals with the fundamental question of Internet censorship.

The findings of the court

In order to obtain a preliminary injunction under Norwegian law, the claimant must substantiate both the merits of the claim (in this case that an infringement takes place), and the grounds for injunction (postponing a regular ruling will cause the claimant substantial inconvenience or financial loss).

The District Court ruled in favour of Telenor and threw out the music and film industry’s application for an injunction in its decision of 6 November 2009. The music and film industry appealed the decision to the Borgarting Court of Appeal. On 10 February 2010 The Borgarting Court of Appeal upheld the decision by the District Court and dismissed the appeal.

The Borgarting Court of Appeal considered the merits of the claim in light of both regulations and case law from the EC and the Nordic countries in addition to the Norwegian legislation. It pointed out that Telenor neither provides internet access to The Pirate Bay, nor does it host The Pirate Bay website. Telenor is therefore a mere provider of technical infrastructure and does not illegally contribute to the illegal file sharing performed by users of The Pirate Bay. The court further stated that the substantive test is not whether or not there is a causal relationship between the service and the infringement, but whether or not Telenor commits an unlawful act by allowing its customers to access The Pirate Bay. The court found that neither article 8.3 of Directive 2001/29/EC nor any Norwegian legislation establish a basis for such a claim. Neither did the court find case law relating to liability for persons deliberately linking to infringed content to be applicable through the use of analogy in cases relating to ISP liability.

Two battles won – but is the war over?

The decision is not yet in force. There is therefore a possibility that the case will be appealed to the Norwegian Supreme Court. Further, since the decision from The Borgarting Court of Appeal is a decision in a case regarding a preliminary injunction, the claimants have the possibility of filing a regular law suit against Telenor.

In Wiersholms’ opinion there is every reason to disapprove of the parasitism of websites like The Pirate Bay, which obviously are designed to facilitate illegal downloading of copyright material. However, we do agree with the courts that there is currently no legal basis for claims such as the one brought on by the music and film industry. Further, Wiersholm disagrees with the music and film industry’s strategy of aggressively pursuing the technical service providers in order to battle illegal file sharing. Such a strategy raises a whole number of principled matters, in particular the then situation of the technical service providers filling the roles as police, judge, and jury. In addition there is the unavoidable fact that if access to The Pirate Bay is blocked, another alternative for illegal downloading will surely exist the morning after.

While this case has served its purpose of being the Nordic test case, the final word in the matter is yet to be said".

Telenor was represented by Wiersholm’s IP litigation team, lead by John S Gulbrandsen and Rune Opdahl. A full-text English translation of the decision is available here and at Wiersholm’s IP and IT law website.