Video-hosting platforms that allow users to upload content are currently protected by so-called ‘safe harbor’ exceptions.
They are generally not responsible for infringing content when they respond appropriately to complaints from copyright holders. In a case against US-based video platform Vimeo that has just concluded in Italy, things certainly didn’t go to plan.
In a ruling handed down by the Commercial Court of Rome on January 10, 2019, Vimeo was ordered to pay €8.5 million plus court costs to RTI, a company owned by Italy-based mass media giant Mediaset.
According to the ruling, Vimeo allowed copyrighted TV content owned by the company to be published on its platform and then failed to remove them as the law requires. The Court described Vimeo as acting as a video on demand (VoD) service for RTI content, to the detriment of the company.
In addition to removing the content in question, Vimeo will also have to act proactively in the future by preventing new uploads of unauthorized content. Failure to do so will result in a fine of 1,000 euros for each offense plus an additional penalty of 500 euros for each day the content remains accessible on Vimeo.
The roots of the dispute date back to 2012 when Mediaset found that content extracted from its TV programming had been uploaded by Vimeo users without the necessary permission. Over time, the list of infringing content grew to more than 2,000 works.
Importantly, the Court determined that service providers who play an “active role” including “cataloging, indexing and commissioning” content cannot benefit from the safe harbor exemptions offered by the Electronic Commerce Directive 2000/31/EC.
As a result, Vimeo “lost its neutral character, and with it the exemption of responsibility,” reports Alessandro La Rosa, a lawyer who acted for Mediaset.
Also of interest is that the Court highlighted technical capabilities that are available to Vimeo which should allow the platform to identify infringing content automatically and without being provided with specific URLs to take down.
This technology should allow the hosting provider “to identify, within the material on its digital platform, those that match certain illicit content, even without the prior knowledge of the reference URL and without having to devote personnel to individually view all the videos published and compare them with the programs of the holder of the infringed right.”
The timing of the ruling is notable. Within the next week, the European Parliament and Council will be aiming to agree on the final text of the ever-controversial Article 13, which may – or indeed may not – place content hosting platforms like YouTube and Vimeo in a less favorable position in respect of safe harbor protections.
“The sentence of the court of Rome takes on particular importance as it comes in the final stages of the approval process of the new European directive proposal having as its object the protection of copyright with respect to violations committed via the web,” Mediaset said in a statement.
“A provision that intends to harmonize copyright laws in the individual States to protect the creative industry and publishers who, like Mediaset, create content regularly remunerating the rights of all authors .”
According to La Rosa, the decision of the Court “is in full harmony” with recent decisions from the EU Court of Justice and also the assumption under some Article 13 proposals that content sharing platforms should obtain licenses for public communication of third-party works.
“n the absence of such agreements, the obligation to lend due cooperation with the owners of the rights to prevent, with all the means made available by the state of the art, unauthorized uses of said works,” La Rosa says.
Speaking with TorrentFreak, Enzo Mazza, CEO at the Italian Federation of the Music Industry, underlined the importance of the case in Europe.
“The decision is really important regarding the definition of active hosting limiting the safe harbor and therefore extending the liabilities of the defendant,” Mazza said.
“This allows the creative sector to better address the fight against copyright violations in the video streaming area. Also regarding compensation of damages the decision is groundbreaking in Europe. ”
In addition to paying the rather large fine and remaining vigilant on any further uploads of infringing Mediaset content, Vimeo has been ordered to publish details of the ruling in the physical and online editions of two Italian newspapers. It is also required to publish the same information on the home page of Vimeo.com
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