1. Over the last years, the issue of effectively protecting IP rights on social media platforms has given rise to a heated debate. Companies owning or managing such platforms usually claim to be entitled to benefiting from the 'provider exemptions', set (by EU Directive no. 31 of 2000) with respect to liability for copyright infringements occurring in the online environment.
With the booming success of social media, the number of violations of IP rights has also shown a rapidly increasing trend. Therefore, to no one's surprise internet providers nowadays not only find themselves frequently hit by cease and desist injunctions or access blocking orders with respect to content present on their platforms, but also with co-liability and damage compensation claims brought up by the offended parties.
2. In Italy, the Corporate and IP Section of a First Instance Court in Turin was called to deal with such a case. The Italian licensee of a Latin-American TV series objected against the fact that several episodes had been made available for free to Italian residents by uploading them on a social media platform without any suitable measure to prevent copyright infringement. A lawsuit was filed asking for cancellation of the infringing content and seeking damage compensation from the online platform which had allowed access to such content.
3. The plaintiff also tried to achieve injunctive relief, but did not succeed in obtaining temporary cautionary measures as – in the Court's view – he had worded his claim in too broad and generic terms, failing to individuate the specific URLs allowing unauthorized access to the episodes. When the plaintiff made up for such initial failure, the social media platform arranged for making the content unavailable to Italian residents, but did not cancel it.
4. Now the Court has issued its decision on the merits of the case, offering also a new (and slightly worrying) approach to the issue of Internet providers' liability for illicit conduct performed on their platforms.
According to the Court once the platform owner/manager receives notice the posting of content infringing on third parties' copyright, he has clearly awareness of the illegal presence of the posted content. Such awareness determines a specific obligation for the owner/manager to cooperate with the offended subject and to prevent – as a first measure – the posting of further infringing videos, by accurately controlling (through specific and not just automated supervision) all post uploaded from the infringer after the receipt of the opposing notice. Plaintiff's further argument about the social media platform having renounced its 'net neutrality' status by indexing and organizing uploaded content for a commercial purpose and for an economic benefit (e.g. to combine posts with coherent ads) was dismissed, as the Court felt that such intervention did not imply any modification of the videos posted (this position is not shared by other recent local case-law, which considers this kind of intervention as an active involvement of the social media platform, suitable to overcome the safe harbor status).
On such premises, the Court came to the conclusion that by simply 'obscuring content' through blocking access to local residents, the social media platform had failed to put in place proper measures to prevent – after the notice – further violations of third parties' IP rights. In the Court's view, the block resulted easy to circumvent by faking access from a foreign location. Therefore, the defendant was ordered to compensate plaintiff's damages, determined in Euro 250.000. The plaintiff had asked for more than 13 Mil. Euro in damages, but the Court disagreed on the calculation criterion and preferred an equitable damage assessment. The defendant has also to bear the legal fees and costs, fixed in approx. 45.000 Euro.
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