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French court slaps poor man's YouTube

Dailymotion guilty of copyright infringement

France's answer to YouTube has been found guilty of copyright infringement. As the Google-owned YouTube faces a U.S. lawsuit from movie and TV behemoth Viacom, a French high court has ruled against the Paris-based video-sharing site Dailymotion, holding it liable for a copyrighted film posted by its users. Earlier this summer, after a high-profile suit from a man called The Buttock, the same court laid down a similar ruling against MySpace, but its latest order goes a few steps further.

Last month, the President of the High Court of the First Instance of Paris - whose title reads much better in French - issued a "summary order" that classified MySpace as a publisher, arguing that the so-called social-networker is more than just a hosting service and should be held liable for infringing content posted to its site. Well-known French comedian The Buttock - whose title reads about the same in French - sued MySpace after several of his films turned up on its pages.

Issued by a separate arm of the court, the new Dailymotion order carries a little more weight - and poses a greater threat to other sharing services. After a film called Joyeux Noel popped up on the site, Dailymotion was sued by the film's producers, and on July 13, a separate arm of the High Court held the site liable for copyright infringement - without calling it a publisher.

In its "proceeding on the merits" - a ruling backed by more legal rigor than a quick-and-dirty summary order - the court ruled that Dailymotion is liable simply because it was aware that the film was on its server. Says Brad Spitz, a French copyright lawyer whose recent blog post about the case was picked up by French tech law site Juriscom.net, "The Parisian judges held that DailyMotion was aware that illegal videos were put online 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."

As the court noted, Dailymotion did not take the film down even after it received a letter of complaint from the producers. The court ordered the site to pay the film's producers 23,000 euros in damages and fork over a 1500 euro fine for each day the movie stays online - though Dailymotion can appeal.

"This shows that the service providers can be liable if they're aware of illegal content and do nothing," Spitz told El Reg. He was referring to French service providers, of course, but he also pointed out that the French law applied by the court mirrors the Digital Millennium Copyright Act (DMCA), the law that governs such issues in the U.S. "American law is a bit similar," he said, "and you could have the same judgment in the States."

Indeed, video-sharers like YouTube can be held liable under the DCMA if they're aware of content infringement on their sites. "Clearly, if you are the owner of a movie and you say to me, 'On your site, at this address, you'll find my movie, take it off,' I have to take it off," says Ethan Horwitz, an intellectual property lawyer with the international firm King & Spalding.

But most of these sites, including YouTube, have set up some sort of system for responding to complaints from copyright holders. The problem becomes one of volume. Can a site respond to all complaints in a timely manner? Can copyright holders identify every instance of infringing material? "I don't think anybody disagrees that if you know about it, you have to take care of it," Horowitz explains. "The whole question is: What is knowing about, and what is taking care of it?"

Where web-based video sharers are concerned, American courts have yet to rule on the matter, but several suits against YouTube and others - including the big one from Viacom - could bring things to a head.®

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