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France: Forcing Google to police YouTube is a non-non

No need to hunt down re-posted copyrighted stuff

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Google does not have to proactively remove copyright infringing content that has been re-posted on YouTube because such a measure would breach EU law, France's highest court has ruled.

The Court of Cassation said it would be "disproportionate to the aim pursued" for Google to prevent online postings of infringing videos from being re-posted by users in circumstances where they have not been notified of the suspected illegal content and its location.

This is because if Google was required to engage in that activity it would have a "general obligation to monitor the images they store and search for updates online" and this would breach EU law, it ruled, according to an automated translation of the court's decision.

The EU's E-Commerce Directive protects service providers from liability for material that they neither create nor monitor but simply store or pass on to users of their service. The Directive says that service providers are generally not responsible for the activity of customers and that member states must not put service providers under any general obligation to police illegal activity on its service.

E-Commerce Directive prohibits a 'personal obligation'

Service providers are not liable for infringement via their services if they do not have "actual knowledge" or an awareness of the illegal activity. In circumstances where they obtain such knowledge providing a service provider "acts expeditiously to remove or to disable access to the information" they are not liable for that infringement. The Directive is implemented in the UK by the E-Commerce Regulations.

Technology law expert Luke Scanlon of Pinsent Masons, the law firm behind Out-Law.com, said that courts are steadily defining what anti-piracy measures are permissible under EU law.

"The E-Commerce Directive prohibits a court from imposing a 'general obligation' on an online service provider to monitor its services for infringing activities or information," he said. "At the same time though, the recitals to the E-Commerce Directive clearly state that the general monitoring prohibition does not concern monitoring obligations in 'a specific case'. It is understandable then, in this case, that content owners have brought a suit against an online service provider seeking a monitoring obligation in relation to specific content.

"The Court of Cassation however has confirmed, in line with recent ECJ rulings, that monitoring obligations that are intended to apply indiscriminately are not permissible even in relation to specific content. This appears to reflect a public policy choice not to permit unnecessary interference with the privacy of online users and burden service providers with enforcement costs in a way that is disproportionate to any loss sustained," Scanlon said.

Germany said 'Ja' on pro-actively flagging up infringing content

The French court's ruling differs from that of a district court in Germany earlier this year in which the Hamburg court ordered Google to pro-actively flag up infringing content to rights-holders using existing technology it operates – if it has previously been notified that an unlawful copy of the content has been uploaded to YouTube by users.

The Hamburg court ordered YouTube to pro-actively use its 'Content ID' system, which it currently operates in order to prevent the spread of copies of content that it knows infringes on copyright rather than rely purely on rights-holders using the system. It also ordered the video-sharing company to install a filter system in order to check whether videos newly uploaded by users infringe on copyright holders' rights.

YouTube's Content ID technology identifies content that music publishers own rights to. Rights holders provide YouTube with copies of the works they want YouTube to reference on the video-sharing site and the technology compares uploaded files with the content provided by rights holders. When a match is identified rights holders can choose whether to block the use of the content, track its use by leaving it up or elect to take a share of the ad revenues generated around the video's use.

Last year the European Court of Justice (ECJ) ruled that national courts cannot force ISPs to use filter systems – installed at ISPs' own expense and used for an unlimited period – to monitor all its customers' electronic communications to prevent illegal file-sharing. It said that such an order would breach ISPs' rights to freely conduct business and individuals' rights to privacy, free speech and the protection of their personal data.

Copyright © 2012, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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