Italian Court Says Yahoo Is Liable For People Finding Infringing Movie Via Its Search

from the secondary-liability dept

Slashdot points us to the details of a recent ruling in Italy that found Yahoo contributory liable for its search pointing people to an unauthorized download of a film. The details of the case seem a bit more nuanced than the short summary. Google and Microsoft were also sued… but reasonably dismissed from the case, since their Italian divisions had nothing to do with their search engines. Yahoo, however, apparently does do some search work in Italy.

As for the reasoning behind the decision, it seems to focus on a stretch of an interpretation of the EU’s E-Commerce Directive, which indicates that a “caching provider” has to block links to content once notified that it’s infringing. While the coverage is a bit unclear, it sounds like this is more difficult than a US-style DMCA notice-and-takedown regime, in that it appears that upon notice that some content is infringing, Yahoo isn’t supposed to just take down that particular link, but all links that can reach that content. In fact, the explanation notes that Yahoo can’t even link to another (legal) website that contains links itself to infringing works. Think about that for a second. It goes beyond secondary liability to something entirely different. I’d call it “head in the sand” liability, where someone seems to hope that by telling search engines they can’t link to sites that might link to infringing works, it will somehow make those works hard to find. The reality, of course, is that it’s just going to frustrate consumers, because search engines now have incentive to take down all sorts of perfectly legitimate search results to avoid liability. Given this and the ruling that found Google execs criminally liable, one wonders why any search engine operates in Italy at all these days…

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Companies: yahoo

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Comments on “Italian Court Says Yahoo Is Liable For People Finding Infringing Movie Via Its Search”

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24 Comments
Greg Gsays:

Re: Re: Re: Compromise

Can we do this AFTER my vacation to Vegas this year?

There’s enough sweet, sweet debauchery there without adding to it with Hollywood or Berlusconi.

The move may commence in September. This allows nearly a month for Vegas to recover from me being there before it is inundated with the idiocy that is Hollywood/Italy.

Michaelsays:

Web?

“In fact, the explanation notes that Yahoo can’t even link to another (legal) website that contains links itself to infringing works”

How can that even be possible? The google engine is pretty good, but they have to make it exclude every link to a particular url and then all sites that link to that same url? What determines a site? Do you just not include pages in the search results, or do you have to exclude entire domains because they have one infringing page? What if the site is using generated code so the url is not in the html until a user clicks a button? What about url shortening services?

It does not take long to come up with some impossible scenarios.

Anonymoussays:

“The reality, of course, is that it’s just going to frustrate consumers, because search engines now have incentive to take down all sorts of perfectly legitimate search results to avoid liability.”

That’s exactly what the content providers deserve – to have every single search result referencing their product removed, even the ones that help them make legal sales. Yahoo has to cover it’s a*s after all, so they should just use the nuclear option.

Melsays:

fall of the Roman Empire

Following this line of thinking, Italy should be held responsible for every car accident, since they provide the roads that the accidents take place on. And add in the crimes where criminals exploit the roads to commit their crimes.

It was this type of bureaucratic thinking that brought Rome to it’s knees. Doesn’t Yahoo know how to grease the skids?

Sean T Henrysays:

Good to find infringement

Italy making it easier to find content. Since they require infringing sites and links to be removed now all that someone needs to do is make an app(lication) that will search your chosen search engine and yahoo Italy, any links that popup on yahoo is removed from the results you are shown. That way you will only see known sites with infringing content.

Torsays:

I wonder how the court could reach that conclusion. Here is what the E-commerce directive says:

Article 13 – “Caching”

1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information’s onward transmission to other recipients of the service upon their request, on condition that:

(a) the provider does not modify the information;

(b) the provider complies with conditions on access to the information;

(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;

(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and

(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.

Now one could perhaps assume that the court is referring to either (b) or (e) here, but to my knowledge Yahoo only provides links in this case. If a link that leads to infringing material is openly published I cannot see how (b) could apply. Surely the copyright owner cannot claim that Yahoo violated an access condition in collecting the link when it was openly published by a third party. If the court felt that (e) applies then it’s very difficult to see why this should apply transitively.

Personally I’m skeptical to whether article 13 should be applied to the links that search engines provide.

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