OSP liability: Paris Court of appeal confirms the abandon by French Courts of the “notice and stay down” doctrine

In a decision of 21 June 2013, the Paris Court of Appeal has confirmed that the obligation for an Online Service Provider (OSP) to take down infringing content is limited to content specifically notified by right holders. Endorsing the reasoning adopted by the French Supreme Court last year in three decisions involving Google, the Court held, in contrast with French case law prior to these decisions, that there was no obligation for a hosting provider to prevent the reappearance of contents that had been previously notified.

In this case, the SPPF (Société des Producteurs de Phonogrammes en France), representing a collective of video and record producers, sued YouTube after noticing that several of the videos they had notified as infringing to YouTube (which YouTube had promptly taken down) had reappeared on YouTube shortly after being taken down. SPPF therefore claimed damages for the loss sustained due to the unauthorized use of these videos as well as an injunction ordering YouTube to make sure that such content would not reappear for a 10-year period. Confirming the decision issued by the trial Court (see Newsletter 3/2011 p.10), the Paris Court of appeal held that YouTube, as a hosting provider, had no liability for the reappearance of infringing content since this would amount to a general monitoring obligation, prohibited by both the Directive and the French implementing provision (law for the Confidence in Digital Economy or LCEN dated 21 June 2004). Going beyond the reasoning of the Supreme Court in the decision above referred, the Paris Court of Appeal also pointed out that SPPF’s refusal to subscribe to the filtering technology “Content ID” offered by YouTube that would have allowed them to claim their content was a fault on the right holders’s part. [Béatrice Martinet Farano]