 In October 2007, a Paris court ordered Google to pay €35,000 in damages for the copyright infringement of the documentary “ Tranquility Bay ”, multiple unauthorized copies of which had been posted on the video-sharing website Google Video. The court ruled that the hosting provider was liable for copyright infringement despite having disabled access to the copies within days after having been notified to do so by the rightholders. The court said that Google had been, from the moment of the first notification, under an obligation to implement the technical means to prevent the reappearance of the documentary. The court, observing that Google had not prevented the multiple postings of the documentary, ruled it had failed with its obligations and was therefore liable for copyright infringement. This is a controversial decision as it substantially extends the duties of hosting providers in dealing with infringing content.
On 19 October 2007, [ 1] the Paris Tribunal de Grande Instance (TGI), the Paris court of first instance in civil matters, ruled that Google was liable for the copyright infringement of the documentary “Tranquility Bay” (“Les enfants perdus de Tranquility Bay" in French). In mid-April 2006, Zadig Productions, the producer of “Tranquility Bay”, discovered that an unauthorized copy of the documentary was available to watch in streaming on Google Video. Zadig immediately sent three formal notifications to Google requesting the removal of the litigious content. Two days later, Google informed the producer it had blocked access to the unlawful content. Within days, however, another copy of the documentary was made available on the website. Zadig notified Google of this new posting and the website disabled access to the video two days later. Nevertheless, Zadig and the directors of “Tranquility Bay” [ 2] launched a copyright lawsuit against Google in June. The documentary subsequently reappeared on several occasions on Google video (once in December 2006 and twice in May 2007). On every instance, Google would remove the video on the day of the rightholders’ notification.
In spite of Google’s speedy response to the notifications, the court found that the hosting provider (1) had not fulfilled its statutory obligations with regards to copyright infringement. The court ruled that Google had failed to implement the technical means to prevent the reappearance of unlawful copies of the documentary (2) and had to pay damages to the rightholders (3). In doing so, the court has adopted an extensive interpretation of the obligations of hosting providers, asserting that Google was, after the first notification, under an obligation to monitor its servers to prevent further dissemination of the unlawful content. This is a controversial decision as it substantially extends the duties of hosting providers in dealing with infringing content (4).
>1. As a hosting provider, Google is eligible for the limitation of liability The first step for the Court was to determine whether Google had, through its Google Video service, acted as a publisher of content or as a mere hosting provider. This distinction is important because publishers and hosting providers are not subject to the same level of liability with regards to unlawful content. Hosting providers enjoy a more favorable statutory liability framework than publishers. They can benefit from the limitation of liability established by the “Loi pour la Confiance dans l’Economie Numérique” or LCEN (the law on the confidence in the digital economy) which was passed in 2004 [ 3] to implement the European E-commerce Directive of 2000. [ 4] This limitation of liability allows, under specific conditions, for hosting providers not to be held liable when unlawful activities have taken place on their platforms. Indeed, under Article 6-I-2 LCEN hosting providers “may not be held civilly liable for the activities or information stored at the request of a recipient [i.e. user] of these services if they did not have actual knowledge of their unlawful nature or of facts and circumstances making this nature apparent, or if, as soon as they obtained such knowledge, they acted expeditiously to remove or to disable access to these data.” [ 5] The obligation of hosting providers is thus to act diligently to put an end to unlawful activities once they have become aware of them. Typically in copyright cases, the hosting provider is made aware of the copyright infringement by the rightholders. Crucially, if hosting providers are required to act upon the information provided by rightholders, they are not expected to look for unlawful activities themselves. Indeed, Article 6-I-7 LCEN states that hosting providers “are under no general obligation to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating unlawful activity.” [ 6] The obligation of hosting providers is thus to act diligently to put an end to infringements which they have become aware of. By contrast, publishers are required to prevent any unlawful activity from happening in the first place. The limitation of liability enjoyed by hosting providers makes it a lot harder for rightholders to hold them liable for copyright infringement. In the case of a publisher, the rightholders only need to establish the existence of an infringement to prove that the publisher was at fault. In the case of a hosting provider, rightholders need to show that the hosting provider was aware of the unlawful act and failed to act fast enough to put an end to it. Those legal parameters dictated the strategies of the parties. Google, which was supported by the Afa, [ 7] an association representing internet service providers in France, argued it had acted as a hosting provider. Google said that the role of the video-sharing website was limited to storing the videos uploaded by its users. Google stressed it had no control on the content submitted nor on the way it was being identified, indexed and shared by users. Google also pointed out that its users had to agree to the terms and conditions of the service which required them to abide by existing laws, notably copyright laws.
In response, the rightholders claimed that Google was more than a mere host and had been acting as the publisher of a video-on-demand service on which it had absolute control.
Ultimately, however, the Paris TGI classified Google Video as a hosting provider. The court said that, although Google Video offered its users “the architecture and the technical means” to organize and access content, Google had acted as a mere host since “the content was provided by the users themselves.” The fact that the content was being provided by the users meant that Google was not a publisher since “a publisher is, by nature, personally [at the origin of, and liable for, the content dissemination].”
By classifying Google Video as a hosting provider, the court made it eligible for the more favorable liability framework. However, the court immediately warned that such framework only established “a limitation not an exoneration of liability.” Indeed, hosting providers have obligations, albeit far less extended than those of publishers, regarding unlawful activities on their services. And the court would ultimately rule that Google had, in the case of “Tranquility Bay”, failed to comply with these obligations.
>2. Google did not act diligently enough to stop repeated postings of the infringing content Google argued it had fulfilled its obligations as a hosting provider by acting expeditiously with regards to the infringing copies of the documentary. Following each and every notification by the rightholders, Google had disabled access to the unlawful content within two days.
The court nevertheless decided that Google had not acted diligently enough. Although it had been swift in responding to the first notification and was therefore not liable for this incident, the court ruled that Google was liable for the subsequent incidents. According to the court, once it had been informed by the rightholders of the existence of an unlawful copy of “Tranquility Bay”, Google “had to implement all the technical means necessary to avoid further dissemination.”
It was not enough for Google to adopt a reactive approach, waiting for the rightholders to send notifications of the new postings of the documentary. The court discarded Google’s argument that every new posting required rightholders to send a new notification. The court pointed out that “if the [multiple postings] are attributable to different users, their content … is identical.” The fact that “Tranquility Bay” had been unlawfully made available once should have prompted Google to implement technical means to prevent further distribution of the documentary.
The court then observed that Google did not provide evidence it had put in place such means, saying that Google’s “alleged development of technical solutions to prevent or at least limit the breach of third parties’ rights had manifestly failed in this instance.” According to the court, Google, by failing to prevent the reappearance of the documentary, had not complied with its obligations as a hosting provider and was therefore liable for copyright infringement.
>3. Google to pay the rightholders €35,000 for copyright infringement The court ordered Google to pay Zadig €25,000 in damages since the multiple unauthorized postings of the documentary had breached its economic rights.
The court also ordered Google to pay the two directors €5,000 each for breach of their moral rights. Indeed, the files uploaded breached the moral rights of the directors on two counts. First, they did not contain any mention of the directors, thus breaching their paternity right (also known as attribution right). Second, the online copies also breached their integrity right since they had been substantially shortened (53 minutes instead of 80 minutes) and were available to watch in streaming which, according to the court, “only allows for bad quality viewing notably given the very small frame.”
>4. Challenging the obligation to prevent specific copyright infringements The decision of the Paris TGI is very interesting and potentially controversial as it introduces a new obligation for the hosting provider with regards to unlawful content. Not only must the host take down the infringing content when notified to do so by the rightholders, but it must now also ensure that the said content does not reappear on its service. This obligation to prevent the reappearance of the content becomes effective after the first notification. Furthermore, the rightholders are not required to send further notifications for subsequent postings of the same content.
The ruling thus substantially increases the duties of the hosting provider. The question is to know whether this new requirement imposed on Google to prevent the reappearance of unlawful content conflicts with the letter and the spirit of the LCEN. More specifically, can it be interpreted as being compatible with the provision of Article 6-I-7 LCEN stating that hosting providers should not be put under a general obligation to control their services for unlawful content.
As Hardouin explains, the Paris TGI has carefully constricted the new obligation so that it would not obviously conflict with the statutory prohibition. Indeed, the court does not impose a general obligation on Google to monitor all the content on its servers for any kind of copyright infringement. Rather, the obligation is to monitor the content that has already been notified. Google’s obligation was to prevent the reappearance of “Tranquility Bay” once it had been notified that unlawful copies of the documentary were being made available. Hardouin rightly describes the obligation imposed by the court as a “specific” obligation to monitor and control by opposition to the general obligation prohibited by the law. [ 8] The careful wording of the decision and the multiple references to the LCEN show the court’s desire to operate within the existing legal framework. Previously the court had been less cautious. In July, it had imposed on Dailymotion, another video-sharing website, a broad obligation of prior control which conflicted more visibly with the statutory prohibition. [ 9] The specific obligation devised in the Google video decision appears more compatible with the LCEN.
This impression of compatibility is reinforced by the existence of a very similar mechanism within the LCEN. Indeed, whereas the first paragraph of Article 6-I-7 establishes the rule that no general obligation to monitor can be imposed on hosting providers, the second paragraph of the same Article allows the judiciary to order hosting providers to implement “targeted and temporary surveillance” on specific contents. This possibility to order a specific surveillance is one of the options available to the court to “avoid damage or abate damage caused by [a specific content].” [ 10] A host can therefore be required to monitor and control specific content under the LCEN. However, the mechanism devised by the court fundamentally differs from that of the LCEN as it does not require judicial oversight. In the LCEN, a hosting provider can only be required to implement a specific surveillance by a court. Under the LCEN, the third party needs to ask a court to order the surveillance. The court has to decide whether the said content causes such harm that it requires specific surveillance. If such surveillance is ordered, the hosting provider will then be judged on its compliance with the order and punished in case of failure. In the mechanism devised by the TGI, however, there is no judicial oversight. The hosting provider has to implement a specific surveillance from the day it receives the notification from the rightholders. [ 11] Whereas in the normal procedure, the judiciary has to decide whether the request of the third party is legitimate; in the mechanism devised by the TGI, such legitimacy is presumed. This gives rightholders an efficient and easy tool to fight piracy. With every notification, the hosting provider is forced to remove the identified content and prevent its further reappearance. This does not bode well for Google. Embolden by the decision, many rightholders are likely to swamp the hosting provider with these high commitment-inducing notifications.
The point here is not to question the legitimacy of the rightholders’ interests or the understandable desire of the court to protect them from the lethal threat of piracy. However, we wonder whether the courts should be able to modify the balance and the statutory framework set by Parliament, by retroactively imposing new obligations on hosting providers. Google had, after all, complied with its statutory obligations by swiftly removing the content after each notification. It was not in a position to comply with an obligation it did not know existed.
It will be interesting to see whether French courts will persevere in pressuring hosting providers to do more against copyright infringement. Hosting providers are well aware of this risk and some have already acted accordingly. Incidentally, a few days before the French decision, Google had announced the implementation of filtering technology for YouTube, its other video-sharing service. [ 12]
NOTES [1] TGI Paris, 19 octobre 2007 (SARL Zadig Productions, Jean-Robert Viallet et Mathieu Verboud c/ Sté Google Inc. et AFA) The Court : M. Claude Vallet (vice président), Mme Véronique Renard (vice président), Mme Sophie Canas (juge) Lawyers: Me Pascal Kamina, Me Alexandra Neri, Me Alexandre Espenel. Decision available @ Legalis.net and @ Juriscom.net COMMENTS : Philippe GILLIERON, "Google held liable as a service provider" IP Phil, 22/11/2007; Ronan HARDOUIN, « Observations sur les nouvelles obligations prétoriennes des hébergeurs » Juriscom.net, 08/11/2007; LEGALIS.NET, « Google condamné pour n’avoir pas rendu impossible la rediffusion d’une vidéo » Legalis.net, 12/11/2007 : ; OLSWANG, “Intermediary liability for user generated content: implications of Google ruling” Olswang, 15/01/2008; Brad SPITZ, “Google Video held liable for not doing all it could to stop the broadcasting of a film” Copyright and Media in France, 29/11/2007; Lionel THOUMYRE, « Google Video : hébergeur mais coupable! » JournalduNet.com, 29/10/2007 ; Lionel THOUMYRE, « Google Video condamné pour contrefaçon » Juriscom.net, 29/10/2007. MEDIA : Arnaud Devillard, Google condamné, comme Dailymotion, pour contrefaçon. 01net., le 23/10/2007; Après Dailymotion et MySpace, Google Video condamné en France. Ratiatum.com, 25/10/2007; Cade Metz, French high court thumps Google Video. The Register, 05/12/2007; French Court tells Google to do the impossible: stop people from uploading copyrighted material. Techdirt, 06/12/2007 [2] Jean-Robert Viallet and Mathieu Verboud [4] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'); available Eur-lex (pdf version) [5] Personal translation of Article 6-I-2 LCEN. PROVISION IN FRENCH : « Les personnes physiques ou morales qui assurent, même à titre gratuit, pour mise à disposition du public par des services de communication au public en ligne, le stockage de signaux, d'écrits, d'images, de sons ou de messages de toute nature fournis par des destinataires de ces services ne peuvent pas voir leur responsabilité civile engagée du fait des activités ou des informations stockées à la demande d'un destinataire de ces services si elles n'avaient pas effectivement connaissance de leur caractère illicite ou de faits et circonstances faisant apparaître ce caractère ou si, dès le moment où elles en ont eu cette connaissance, elles ont agi promptement pour retirer ces données ou en rendre l'accès impossible. » FOR AN ALTERNATIVE TRANSLATION see Julie RUELLE, The Dailymotion case: a tough decision for Internet hosting providers? Bird & Bird, 24/10/2007 : hosting providers “may not be held civilly liable for the activities or information stored at the request of a recipient of these services if they are effectively unaware of the illegal nature thereof or of the facts and circumstances revealing this illegality or if, as soon as they become aware of them, they have acted promptly to remove these data or make access to them impossible”. [6] Personal translation. Provision in French : Article 6-I-7 LCEN : «Les personnes mentionnées aux 1 et 2 ne sont pas soumises à une obligation générale de surveiller les informations qu'elles transmettent ou stockent, ni à une obligation générale de rechercher des faits ou des circonstances révélant des activités illicites..» [8] Hardouin, note 1, p.5. [9] See Nicolas Jondet, “The silver lining in Dailymotion’s copyright cloud” (To be published) abstract available on French-law.net; see also: Tribunal de Grande Instance de Paris, 3ème chambre, 2ème section, 13/07/2007. Available @ Juriscom.net also available @ Legalis.net. COMMENTS : French ruling against video-sharing platform DailyMotion. EDRI-gram - Number 5.14, 18/07/2007 ; Lilian EDWARDS, Web 2.0 liability hits Europe - delete those borrowed cartoons fast, folks…Pangloss, 31/10/2007 ; IRIS, Affaire DailyMotion: le TGI de Paris écrit la LCEN2.0. IRIS , also available in Droit NTIC, 20/07/2007; D.R. (La Gazette du Net), DailyMotion qualifié d'hébergeur et reconnu responsable de la mise en ligne d'une vidéo. Juriscom.net, 16/07/2007; Dailymotion, prestataire technique responsable. Legalis.net, 18/07/2007; Isabelle RENARD, Les acteurs du Web 2.0 vont-ils sortir vainqueurs de la bataille judiciaire? Journal du Net, 07/09/2007 ; Julie RUELLE, The Dailymotion case: a tough decision for Internet hosting providers? Bird & Bird, 24/10/2007; Brad SPITZ, DailyMotion: a ''hosting provider'' liable for copyright infringement. Juriscom.net, 18/07/2007 . [10] LCEN, Article 6-I-8: « L'autorité judiciaire peut prescrire en référé ou sur requête, à toute personne mentionnée au 2 ou, à défaut, à toute personne mentionnée au 1, toutes mesures propres à prévenir un dommage ou à faire cesser un dommage occasionné par le contenu d'un service de communication au public en ligne » [11] Hardouin, note 1, p.7.
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