Italian court held both Google and YouTube liable following failure to remove unlicensed content

Although only a “passive” host, YouTube was liable for failure to promptly and properly remove infringing content from its library.

Delta TV, producer and owner of copyright in a number of South-American soap operas, issued proceedings against YouTube and Google in 2013 for copyright infringement. Delta TV argued that when searching for a particular soap opera, the first page of results would include links to a YouTube page which includes relevant episodes and adverts. Delta TV stated that they had not given permission to YouTube and/or Google for these links to be included.

Both Google and YouTube argued that in the event Delta TV had requested the links to be withdrawn – otherwise known as a takedown request – both websites would have removed all the videos available on YouTube, however since Delta TV had not done so they weren’t liable for the infringing videos being listed on their sites. They further argued that they were protected against liability under the Italian ‘safe harbour’ regime, which provides that “passive” hosts are protected against infringement liability.

Sitting in the Turin Court of First Instance, the judge first ruled that YouTube was a hosting provider for the purpose of applicable law, meaning that it was not generally subject to “preventive, general monitoring obligations” under the E-Commerce Directive (i.e. it did not have to actively police the content it hosted to check for instances of infringement).

The judge then went on to consider whether YouTube should be viewed as a “passive and neutral” host or whether it was instead an “active” host. Should it be an active host, YouTube would fall outside of the safe harbour regime and would not be protected against infringement liability. The Court confirmed that a host becomes “active” where they become involved in content, for example by modifying or “elaborating” the content.

In the Court’s view, YouTube activities of indexing content, matching it with suitable advertisements and granting users control over whether their videos were public or private, did not constitute “active” involvement for the purposes of the E-Commerce Directive. YouTube was, therefore, a “passive” host and was protected from infringement liability.

Delta TV had also claimed that, following their detailed takedown requests, videos were still showing on Google and YouTube. On this point the Court found in Delta TV’s favour, holding that both websites should have removed these videos with a sense of urgency following the request, and should have also prevented further uploads (given that YouTube has the ability to do this automatically in the case of exact duplicates).

Finding mostly in Delta TV’s favour, the Court awarded damages of €250,000 for copyright infringement. This case serves as a warning to online platforms to comply with take-down requests promptly, even where the host is a “passive” host since damages payable for copyright infringement can be significant.