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French courts give clear decisions for hosted content

20 May, 2009

This article is also available in:
Deutsch: Französisches Gericht trifft klare Entscheidungen bei gehosteten Inha...

Several decisions taken by the French courts lately recognize the principle of non-liablilty of some web 2.0 sites for the content hosted. The new interpretation is putting things back on track, after some earlier strange decisions of the lower courts.

Dailymotion, the French video sharing site, has recently benefited of three decisions in its favour, in each case the site being considered as a mere hosting site and thus not liable for copyright infringement. On 30 April 2009, the site was cleared in the case filed by comedian Roland Magdane and his production company Matex, for illegal video sharing of 31 sketches and unfair competition. The court decided the site was only a hosting site, the respective videos having been posted on personal users' accounts. "Dailymotion offers its users an architecture and the technical means allowing a classification of contents, availability to these contents, without a prior intervention of the company on these contents that are supplied by its users who bear their sole responsibility, independently from the host which is in no way (...) an editor" was the decision of the court.

In April 2008, Dailymotion was also brought to court by production companies Davis Films, Davis Films Productions, Nouvelles Editions de Films on the one side and distributor Metropolitan Filmexport on the other for illegal sharing of movie Le Parfum. The plaintiffs contested the hosting status of the site considering Dailymotion had an active role in the treatment of the contents, the classifications being made on commercial criteria and not on functional or technical ones. Also, the plaintiffs considered that the notification stipulated by LCEN for the warning of a site on allegdly illegal hosted content was not mandatory.

However, the court decided Dailymotion was simply a hosting site as users are those posting contents and choosing the key words. It also ruled that the notification of illegal content was definitely mandatory. Dailymotion was therefore exonerated of any guilt and the plaintiffs are to pay 10 000 euros as legal expenses.

In another case, the site was condemned on 13 July 2007 for counterfeiting by the High Instance Court of Paris for illegally sharing online the movie "Joyeux Noël" and required to pay damages to the producers and the exploitation company. At that time, the judges, although acknowledging DailyMotion as a hosting provider and not a publisher, decided however that the site was liable for copyright infringement, as it was aware of the presence of illegal contents on its site. But on 6 May 2009, the appeal court of Paris confirmed the hosting status of Dailymotion cancelling the previous financial sanctions.

The major online auction site eBay had its share of French trials. Thus, in september 2007 it was taken to court by l'Oreal cosmetic company in France, Belgium, Spain and UK under the accusation of allowing counterfeit goods to be traded and asked for about 3.5 million euro in damages.

In August 2008, eBay was already cleared of accusations in Belgium. In UK a verdict on the matter is expected soon while in Spain the matter has not yet been heard. The French court decided that the auction site is only a hosting site as defined by the French law on implementing the e-commerce directive (LCEN - loi pour la confiance dans l'économie numérique) and not an editor and therefore it is not liable for the content on its website. The court also considered that eBay has put into force significant means to fight against online counterfeiting and thus "fulfilled its obligations of loyalty to other operators on the market."

The court has also asked both parties to closely collaborate in order to find adequate measures to fight counterfeiting perfumes and cosmetics and suggested a mediator between the two, a hearing being scheduled for 25 May on the issue. L'Oréal accepted the decision and welcomed the mediation solution. In its turn, eBay was pleased with the outcome considering the fight against counterfeiting should be a shared responsibility and the various involved parties should work together in this matter.

Dailymotion escapes two convictions in ten days (only in French, 11.05.2009)

Counterfeiting : L'Oréal dismissed in its pursue of eBay (only in French, 13.05.2009)

Judge sides with eBay in L'Oreal fake goods case (13.05.2009)

EDRi-gram: France: Linking can be damaging to your pockets (9.04.2009)

EDRI-gram: France considering new rules for web 2.0 (23.04.2009)



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