The President of the High Court of First Instance of Paris, in a summary order dated 22 June 2007, held that despite the fact that MySpace is a hosting provider, it acts as a publisher and may therefore be held liable for copyright infringement on its site (see B. Spitz, “ ‘The Buttock’ sues MySpace for copyright infringement ”, Juriscom.net, 11/07/2007, also available at copyrightfrance.blogspot.com).
In a proceeding on the merits (as opposed to the summary procedure before the President of the Court), the High Court of First Instance of Paris, in a judgment dated 13 July 2007, ruled that DailyMotion is not a publisher. In this case, the producers of the film ‘Joyeux Noel’ sued DailyMotion on the grounds of copyright infringement for the presence of the film on the site.
DailyMotion argued, on the grounds of the French Act of 21 June 2004 on Confidence in the Digital Environment, that it is a mere hosting provider and as such was under no obligation to actively seek facts or circumstances indicating illegal activity, while the plaintiffs argued that DailyMotion is a publisher, and should therefore be held liable for copyright infringement on its site.
The judges held that DailyMotion is a hosting provider, and not a publisher, but that it must be held liable for copyright infringement, as it was aware of the presence of illegal contents on its site. The Court ruled that DailyMotion is not a publisher because the users themselves provide the contents, despite the fact that DailyMotion commercialises advertisements on the site (the President of the same Court, in its order dated 22 June 2007, held that because of the advertisements on the site, MySpace acted as a publisher).
Moreover, the Court held that the provisions of Article 6-I-2 of the French Act on Confidence in the Digital Environment do not provide for a general exemption for providers, but only for a limitation of the liability of the providers where the providers are not “aware” of the illegal nature of the activity or content.
The provisions of Article 6-I-2 come from the implementation of the Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services (Directive on electronic commerce), which provides, in Article 14, that “Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which illegal activity or information is apparent
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.”
It is interesting to note that the US Digital Millenium Copyright Act (DMCA) provides that a service provider shall not be held liable if the provider: “does not have actual knowledge that the material or an activity using the material on the system or network is infringing; in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material” (§ 512(c) of the US Copyright Act).
The Parisian judges held that DailyMotion was aware that illegal videos were put on line on its site, and that it must therefore be held liable for the acts of copyright infringement, since it deliberately furnished the users with the means to commit the acts of infringement. The solution could be the same before an American court, in particular in application of the provisions of § 512 of the Copyright Act.
The Court also noted that DailyMotion did not act to disable access to the litigious film, whether after receiving a formal letter from the plaintiffs (who sent the letter to DailyMotion before bringing the case to court) or after the damage occurred, whereas it is of the provider’s responsibility to carry out a prior control. The judges specified that even though the law does not provide for a general obligation for the providers to actively seek facts or circumstances indicating illegal activities, this limitation is not applicable where the said activities are created or induced by the provider himself.
DailyMotion was condemned by the Court not only for the violation of the plaintiffs’ economic rights (“droits patrimoniaux”), but also for the violation of the plaintiff’s right of integrity (referred to under UK copyright law as the right to object to derogatory treatment), since the “streaming” means used to broadcast the film only allow a very poor quality visualisation, which is not suited to a feature film, and since the unity of the film was undermined by the fact that it was split into two parts.
Doctor at Law
Lawyer, Member of the Paris Bar
Lecturer, University of Paris 1 (Sorbonne)