French movie producers recently scored a significant legal victory in their continung fight against online piracy.
By a ruling dated March 15th the Paris Court of Appeals not only upheld a lower court's decision that internet access providers and search engines (collectively, ISPs) were obliged to block access (in the case of access providers) and remove links (in the case of search engines) to pirate sites but reversed the trial court's decision that the rightsholders had to bear the costs associated with the implementaion of such measures. In other words, the appellate court held that such costs were to be borne by the ISPs.
In reaching this conclusion, the Court of Appeals reasoned as follows:
Section L.336-2 IPC (the French transposition of Article 8, paragraph 3 of the Info Soc Directive), upon which the action against the ISPs was based, is not an action seeking reparation for harm suffered but rather a specific procedure to be used against intermediaries who are not (necessarily) liable for the infringement. Consequently, a fault-based approach to the determination of the costs issue is not appropriate.
Referring to the CJUE's ruling in the UPC Telekabel case, the Court noted that while it was true that obliging the ISPs to bear the costs of the measures adversely affected their fredom to conduct business, this was not unreasonable given that they were free to determine the precise technological measures deployed based on their resources and capacity (as long as the desired results were achieved).
The Court also referred to the general principle in French law under which it is not for the party who is a victim of wrongdoing and who seeks redress in court to pay the costs associated therewith. The Court noted that the already precarious financial situation of the rights holders would be seriously jeopardized by imposing the costs on them whereas the ISPs "derive an economic profit from the access (in particular by way of advertising on their pages) and it is thus legitimate and proportional that they contribute financially" to implementing the measures. (This particular finding has already been criticized by certain commentators as factually inaccurate.)
In response to the argument put forth by the access providers that the statutory provision in question did not expressly provide for them to bear the costs whereas certain other statutory provisions did, the Court noted that while this was true the latter existed in contexts where the blocking measures were sought by the State for reasons of public order (online gambling, national defense) and not in contexts of private rights enforcement. Accordingly, the absence of express provisions imposing such costs on the access providers in Section L.336-2 IPC was not a bar to doing so.
The Court of Appeals' decision has been hailed by many (including the CNC) as an important step in fighting online piracy. There has been some press speculation that the ISPs intend to appeal to the Cour de cassation.
Link to ruling in French here
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