201907.24
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The crack down on infringing content on video-sharing platforms continues

We have discussed in previous articles the Court’s outlook on illegal streaming sites such as Pirate Bay and the use of Internet Protocol Television as a source to provide illegal tv subscriptions as seen in the recent lawsuit filed against SET TV.

However, in what is possibly the first decision of its type in Europe, the Rome Court of First Instance has found a website named ‘Dailymotion’ directly liable for the content that is uploaded by the users of the platform.

Being a site that relies on user-generated content, Dailymotion has been dealing with the issue of infringing uploads for some time. Previously the platform would rely on takedown notices being submitted by the copyright holders, and would then remove the infringing content. However, what can be seen by the Rome court’s decision is that this approach is not always accepted. The new Copyright Directive in the Digital Single Market has provided changes to the way video sharing platforms such as YouTube and Facebook are liable for the illegal content on their sites. This decision by the Rome court could give further guidance on what video sharing platforms can expect in respect of infringing content on their sites following the national implementation of the directive.

Italian broadcasting giant RTI, which is a company owned by Italy based mass media monolith Mediaset, argued that Dailymotion was hosting hundreds of infringing videos of TV shows like Big Brother and Celebrity Island. Dailymotion argued that it is limited in what it can do without specific videos being identified to it. However, the Court did not accept this defence and ordered Dailymotion to pay €5.5million to RTI in damages.

Dailymotion is now deemed to have ‘actual knowledge’ of any infringing video it hosts, and therefore cannot rely only on copyright holders to submit takedown notices for specific videos. If the platform is found not to have dealt with future infringements, an additional €5000 in damages will be ordered to be paid for each video infringing copyright that is available on the site.  It is unclear how this will be policed or whether the rights-holder will still have to identify infringements of their rights themselves in this regard.

Due to the inference of actual knowledge on the part of Dailymotion, it will be sufficient to provide names, general descriptions of shows, and the broadcasters trade mark, for an infringement to be made out, without the specification of specific videos. Therefore, it will be important for Dailymotion to set up a proactive piracy filtering system that targets specific works to aid in providing protection against future uploads.  The most popular user-submitted content-streaming website YouTube already does this with its ContentID system.

YouTube has its own case on similar facts currently pending after a request was made during those proceedings for a reference to the Court of Justice of the European Union: the request was denied.  YouTube will certainly hope that its case is not decided on the same lines as this one.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.