On June 3, 2015, the Court of Turini took up a new case regarding the on-line infringement of copyrights which are exclusively held by a producer and distributor of audiovisual works. As has been systematically occurring lately, in spite of the fact that audiovisual works and films are, as a general rule, legitimate exclusive property, often paid for at a dear cost, they are made available to the public against the will of the owner of the copyrights on multiple platforms on the edge of their first use. Unfortunately, up to now, in the face of such violations it has been impossible to discontinue such using the legal tools granted by law.
The reasons as to why it is so difficult to obtain the effective removal of protected works files that are placed on computer networks by not disinterested uploaders, are essentially attributable to the facts that: the interpretation of the regulations in force in our country, prevent the identification of individuals who commit such violations; and the removal from the Internet Service providers of any real definitive obligation to disable access to illegal files that are found on the platforms managed by them even if they have been provided with a Notice and Take Down request from the owner of the copyrights.
This is especially true in cases in which the reporting of illegal files to be deleted relates to a string that uniquely identifies the Internet address of content present on the server that hosts it. This is because the URLii that distinguishes them is the only place where the individual specific content is found and it does not exhaust the number of identical examples present on a given and individual platform.
With regard to this last issue, that of removing illegal files, it should be noted that for platforms that are equipped with systems for identifying works on them on-line, through the use of so-called reference files created on the basis of the audiovisual material claimed by its copyright owner, the Court of Turin had already ruled on this in last year’s orderiii.
In this case, it was held that a court order aimed at preventing a new upload of the same file on websites is not comparable and does not fall within the category of "general oversight obligations", and as such, is excluded from the ISP's actions in accordance with European Union legislationiv. However, it is an obligation of the service provider, which is already aware of the illegal presence on the website which it manages as an active hosting provider.
In the same decision, the Court observed that it was not necessary that the reference files were provided by the copyright owners for the verification of the ISP, in as much as it would have been enough that Content ID software had its own comparison files, in order to identify those with the same content posted on the network in violation of the copyrights.
The same reasoning was followed in June 2014 on this specific point by the Court of Turin in the case of the French platform, Dailymotion. The Court rejected the argument that the copyright owner has to make a new complaint for every additional infringement relating to the same content previously reported. The Court held that the provider of the on-line services may not refuse to use the reference files necessary for the identification of additional examples of the abusive files loaded on the network. According to this Court, in fact, with the complaint-by the copyright owners- against the URLs that allow content to be illegally uploaded, the Internet Service Provider has had actual knowledge of the infringement committed and has all the elements necessary to intervene with their removal.
Of great importance, in the examination of the case of which we are concerned, is the part that relates to the order handed down in Dailymotion to provide the copyright owners with the information in its possession which is useful to identify those responsible for the infringements committed with the uploading of files of protected works.
This issue, which concerns the discovery of those who are engaged in such infringements through computer networks, as known to the reader, has been the focus of a previous case, even at the judicial level, which has gone on many years.
Here, I am referring to the famous "Peppermint"v case and its jurisprudential developments, based on the application of the Copyright Act, which gave effect to the so-called Enforcement Directive (Directive 2004/48/EC).
I am referring, in particular, to the provisions of Articles 156-bis and 156-tervi of the Copyright Act, the first of which sets forth, inter alia, that the party who has provided serious evidence from which it could reasonably infer the validity of their claims may obtain "that the court order the other party to provide the evidence for the identification of the persons involved in the production and distribution of goods or services that constitute an infringement of the rights provided for under this law". Referencing the above hypothesis of the defense of a right in a court of law, the Court of Rome, regarding the protection afforded pursuant to Article 156-bis of the Copyright Act, had a way to establish, with its decision dated August 19, 2006, that: "the display allowed by Article 156-bis 1. 633/41 is not blocked by any regulation of Legislative Decree 96/2003. Article 24, paragraph 1, letter (f) of Legislative Decree 196/2003 which relates to the processing of personal data-with the exception of the distribution of such-in fact establishes that it is permitted even without the consent of the person concerned, when necessary "to establish or defend a right in a court of law". The Court in relation to the specific case under review (Peppermint) added that "This is precisely the case here, the applicant, not having any other tool to trace, through the IP of the authors of the upload, to general information of the latter"vii .
This line of case law was later modified by the Court of Rome, especially for the intervention of the Data Protection Authority, which directly took part in some of the cases in which the plaintiffs made request to obtain the data of those subjects who loaded online – illegally- files of protected works, so that subsequent decisions to those cited above regarding the possibility of obtaining information about those subjects involved are in line with the requirements of the Italian Data Protection Authority on the basis of a series of uniform decisions, up to arriving at the last order in the Peppermint case, as known to us, that was handed down by Judge Gabriella Muscolo on March 19, 2008 in the Techland – Peppermint Jam Records/Tiscali Italia case.
In the order in question, the judge at the trial level, which, at the time, was part of the Special Sections relating Intellectual Property in the Court of Rome, made an interesting analysis on the legal basis of the cited provisions of Articles 156-bis and 156-ter of the Copyright Act, supporting their full operation and effectiveness in our legal system for the purposes that they are intended, but noting that Article 156-bis, paragraph 3, would impose on the court, in asking for information from counterfeiters, the obligation to adopt "all appropriate measures to ensure the protection of confidential information, in consultation with the counterparty". According to the same judge at the Court of Rome, even Directive 2001/29/EC on the protection of the copyrights in the information company, Article 9, would prejudice – among the many – the regulations concerning "confidentiality, data protection and respect for private life" of which the defense is a priority – in the opinion of the judge – and would extend even to injunctions "made against intermediaries whose services are used by third parties to infringe a copyright or its related rights" as referred to in Article 8 (3) of the same Directive.
In this vein, the Court of Rome, after following the argument regarding the proportionality of the measures to be taken for the protection of copyrights, including that in relation to the principle of balancing the protected interests (privacy and intellectual property) arising from the decision of the Court of Justice in the Promusicae/Telefonica caseviii, held that, in cases where "the execution of the discovery order is resolved in a communication of personal data of consumers, without any consent from such consumers, which operates on the network under the presumption of anonymity , the measure would violate the right to confidentiality of the same and, therefore, lack the admissibility requirement".
To the contrary is the text of the order of the Court of Torino of which we are concerned today, and according to which, however, the balance between the conflicting rights must be read as meaning that "Community law does not require Member States to establish an obligation to communicate personal data in order to ensure the effective protection of copyrights in the context of civil proceedings; nor forbids it." With regard to the request submitted by the appellant, Delta TV Programs, against Dailymotion, according to the President of the Special Sections of the Court of Turin it appears that "logic, targeted and limited to the authors of overt, circumscribed and recognized violations, even under criminal law (pursuant to Article 171 of the Copyright Act.), and above all, in clear divergence with respect to the case decided by the Court of Justice (Promusicae vs. Telefonica), considered that this is not about the buyers of illegally distributed products but the real and actual perpetrators of the acts of infringement". In other words, the downloading must be clearly distinguished from the uploading of protected works, the former constituting a neutral criminal action, while the second – clearly characterized by profit – appears to be serious and capable of altering the balance of interests involved.
In support of such view, a judge sitting in a Piedmont Court stressed that, in the case under review, we are not faced with a conflict between economic exploitation of the work and the freedom of communication and expression of individuals who illegally reproduce files of copyrighted works for personal purpose, but said conflict concerns "the reproduction and distribution for, at least indirectly, commercial purposes, of the work on an actual competitive basis". In other words, the protection of privacy does not justify actions of enrichment at the expense of the copyright owners of the protected works, so as to totally sacrifice their investment and that of their assignees.
This is not unlike what was recently decided by the Court of Turin, even the Tribunal de Grand Instance of Strasbourg on January 21, 2015 ordered four major service providers to provide the appellant anti-piracy association's lawyers "the identity, postal address, and email addresses of the persons holding the IP addresses listed in the hearing minutes" on the record.
Maybe it's too early to say that we are facing a revirement of judges in the face of the spread of offences committed through the computer networks, but – it is certain that– the attention to the problem is growing in relation to the concern of copyright owners, of whom the latter belong increasingly to the same companies that manage the most important digital platforms and that they have realized the need to use them to acquire contacts and advertising, in other words: profit.
Luciano Daffarra, attorney at law
i See Decision of the Court of Turin dated June 3, 2015, docket number RGNR 11343/2015.
ii Uniform Resource Locator –or- URL.
iii See Decision of the Court of Turin dated June 23, 2014, docket number RGNR 15218/2014.
iv See Article 15 of Directive 2000/31/CE and Article 17 of Legislative Decree 70/2003.
v The “Peppermint case” may be summarized as follows: several thousand Italian citizens received a legal notice from the attorneys for a German recording label, Peppermint Jam Records GmbH, with which the same ordered the removal of music files from the parties’ computers by artists whose rights to the economic exploitation were owned by the company, and which were shared and made available to other users of the internet network through file sharing programs. Peppermint had also monitored infringements committed on-line by the afore-stated users via a Swiss company, Logistep AG, which had identified personal data relating to its users who had carried out large exchange activities of files of musical works belonging to the abovementioned Peppermint.
vi Article 156-bis
1. If a party has provided series elements from which the merits of his claim may be reasonably inferred and has identified documents, data or information held by the party which confirms such evidence, he may obtain that a judge order them to be presented or require the information be presented to the counterparty. The party may also obtain that the court order the other party to provide the evidence for the identification of the persons involved in the production and distribution of goods or services that constitute an infringement of the rights under this law.
2. In the event of an infringement committed on a commercial scale, the court may also order, at the party’s request, the presentation of bank, financial and commercial records, which are in the possession of the counterparty.
3. The judge, in taking the measures referred to in paragraphs 1 and 2, will take all appropriate measures to ensure the protection of confidential information, in consultation with the counterparty.
4. The judge will establish the evidentiary assertions from the responses the parties give and from the unjustified refusal to comply with his orders.
Article 156-ter
1. The court, both in pre-trial and trial on the merits phases, may order, upon the justified and proportionate request of the applicant, the disclosure of information regarding the origin and distribution networks of goods or services that infringe a right referred to in this law or which provide information about the origin and distribution networks of the goods or services which are infringing by the party who carries out the infringement or any other person who:
a) was found in possession of goods, on a commercial scale, in violation of the law; was found to be using the services which infringed the law, on a commercial scale;
b) was found to be providing, on a commercial scale, services used in the infringing activities;
c) was indicated by the persons referred to in letters (a) or (b) as being involved in the production of such services.
2. The information referred to in paragraph 1 may, inter alia, include the name and address of the producers, manufacturers, distributers, suppliers, and other previous holders of the goods or services, as well as, wholesalers, and retailers and the information regarding the quantities produced, manufactured, delivered, received, or ordered, as well as, the prices of the goods or services in question.
3. The information is obtained by way of interrogation of the persons referred to in paragraph 1.
4. The applicant must provide the specific indication of the persons to be interrogated and the facts on which each of them is to be questioned.
5. The judge, allowing the interrogation, will require from the persons referred to in paragraph 1 the information indicated by the party; the judge may also make, by the power of his office or upon the request of the applicant party, all of the questions deemed necessary to clarify the circumstances on which the interrogation takes place.
6. Articles 249, 250, 252, 255 and 257, first paragraph of the Code of Civil Procedure apply.
vii See decision of the Court of Rome dated August 19, 2006, docket number NRGAC 44820/06 and the decision of the Court of Rome Civil Section number IX, dated February 9, 2007.
viii See the decision of the Court of Justice in the C-275/06 case dated January 29, 2008 at http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130deb4879e6061c946e99b68be905fdfb3eb.e34KaxiLc3eQc40LaxqMbN4ObxyMe0?text=&docid=70107&pageIndex=0&doclang=IT&mode=lst&dir=&occ=first&part=1&cid=793491.
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