French Court holds ISP liable for not promptly taking down infringing content

By Béatrice Martinet Farano

In a decision of 2 December 2014, the Paris court of appeal confirmed a judgment issued a couple of years ago (see Newsletter No 4-5/2012 p. 14-15) by the Paris trial Court holding video-platform Dailymotion, (“The French Youtube”) liable for failing short of its obligation as a hosting provider.

In this case, TF1 and other French TV broadcasters brought a copyright infringement action against Dailymotion after they found some of their videos posted on Dailymotion without their authorization.

While the appellate court rejected the claimants’ first contention that Dailymotion was liable as the “publisher” of their videos because they had allegedly played an “active role” in the selection and highlighting of such videos (see Google France, Newsletter No 2-2010 p. 7 and L’Oreal v. eBay, Newsletter 4-5 2011 p. 7-8 for further discussions on the “active role” criteria), the court however affirmed the trial court’s decision that Dailymotion was nevertheless liable as an intermediary for not taking down promptly enough infringing content and for not having taken any measures against repeat infringers.

To reach this conclusion, the court examined closely the number of days elapsed between the reception of each take down notices and the effective date each notified content was effectively taken down, holding that a failure to take down infringing content for a time period as short as four days was a breach to the hosting provider’s obligation to take down content promptly.

To assess the damages suffered by TF1, the Court took into consideration the money invested by the TV broadcaster in each of these programs to assess the damage at $2000 by videos. The court then listed a total of 166 links that had not been taken within a period of 4 days to two months from the right holder’s notification to get to a total damage of 1.3 million euros to be paid by Dailymotion to TF1. This very substantial indemnification for a mere delay in taking down infringing content will remind intermediaries of the importance of taking down content promptly upon the reception of compliant take down notice.