The active Hosting Provider: the latest jurisprudential interpretation (part III)

Adhering to the consolidated jurisprudential orientation in 2019, in the VIMEO case, the Court of Rome was able to express itself again, in 2021, with a double sentence, respectively in the RTI S.p.A. cases. vs. Qlipso Inc. and Dailymotion S.A.

With reference to the first trial, the RTI actress highlighted the illicit reproduction, on the digital channels of the defendant Qlipso, of countless audiovisual clips extracted from the programs "Grande Fratello", "Uomini e Donne", "Zelig", "Mai dire grande fratello" etc. As for the second judgment, RTI denounced the same unlawful conduct against Dailymotion, on whose internet platform countless videos taken from the programs "C'è posta per te", "L'isola dei famosi", "Cotto e mangiato", "Passaparola", "Casa Vianello" etc.

Qlipso, not contesting the copyrights invoked by RTI, opposed assuming a role of passive Internet Service Provider, given that the users of the video sharing platform on which the illicit reproduction of the contents of the RTI took place are free to autonomy of video content to your liking, without any intervention by the provider. He also stressed that he was not aware of the contents of the videos uploaded by users, given the significant number of videos uploaded daily. Similarly, in the second judgment, Dailymotion claimed that it limited itself to making an internet platform available to users, without being aware that the videos uploaded by users infringed RTI's copyrights.

In the judgment against Qlipso, RTI underlined that the defendant's portal organizes the videos by thematic channels, providing a real schedule; in short, it pointed out that Qlipso does not limit itself to allowing the publication of videos to users but catalogs the same contents, indexing them in order to make them easier to consult. Likewise, in the judgment against Dailymotion, RTI found that the defendant's internet platform provides users with a search engine which even provides search suggestions, as well as catalogs and indexes the uploaded content in extremely precise categories. Lastly, RTI noted that Dailymotion commercially exploits user-uploaded content through contextual ad serving.

Here is how the Court of Rome, with a sentence of 20 January 2021, expressed itself on the Qlipso case: "the provider analyzed and selected the contents stored on the site, cataloging, indexing and organizing them by sections and topics With the aforementioned cataloging and indexing activities, the defendant was able to ascertain the presence of programs subject to proprietary rights, as well as the absence of the necessary authorizations for their dissemination, with the consequent obligation to remove the contents that infringe the rights of third parties. (...) ".

And here is how the same Capitoline court, after only two days, expressed itself in the judgment against Dailymotion: "the Internet Service Provider loses the quality of a neutral and passive subject when (...) it has operated, on data that loads, forms of intervention aimed at exploiting the contents of individual materials stored by users, through the control, knowledge and profiling of data in a non-automated manner ".

At the conclusion of this in-depth review, it is found that the three jurisprudential rulings examined consolidate the now clear distinction between active and passive hosting provider, subjecting to the first category the ISP that operates any technical interference aimed at organizing, controlling and commercially exploit the content uploaded by users.

If you missed the first two parts of the article you can find them here:

• Part I
• Part II

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