Judge Reverses Ridiculous $625 Million Patent Award Against Apple Over Cover Flow, Spotlight & Time Machine

Italian Court Says Yahoo Is Liable For People Finding Infringing Movie Via Its Search

from the secondary-liability dept

Wed, Apr 6th 2011 4:05am — Mike Masnick

Slashdot points us to the details of a recent ruling in Italy that found Yahoo contributory liable for its search pointing people to an unauthorized download of a film. The details of the case seem a bit more nuanced than the short summary. Google and Microsoft were also sued... but reasonably dismissed from the case, since their Italian divisions had nothing to do with their search engines. Yahoo, however, apparently does do some search work in Italy.

As for the reasoning behind the decision, it seems to focus on a stretch of an interpretation of the EU's E-Commerce Directive, which indicates that a "caching provider" has to block links to content once notified that it's infringing. While the coverage is a bit unclear, it sounds like this is more difficult than a US-style DMCA notice-and-takedown regime, in that it appears that upon notice that some content is infringing, Yahoo isn't supposed to just take down that particular link, but all links that can reach that content. In fact, the explanation notes that Yahoo can't even link to another (legal) website that contains links itself to infringing works. Think about that for a second. It goes beyond secondary liability to something entirely different. I'd call it "head in the sand" liability, where someone seems to hope that by telling search engines they can't link to sites that might link to infringing works, it will somehow make those works hard to find. The reality, of course, is that it's just going to frustrate consumers, because search engines now have incentive to take down all sorts of perfectly legitimate search results to avoid liability. Given this and the ruling that found Google execs criminally liable, one wonders why any search engine operates in Italy at all these days...

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Filed Under: italy, liability, links, search, secondary liability
Companies: yahoo

24 Comments

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The eejit (profile), 6 Apr 2011 @ 3:14am

MAybe Berlusconi's trying to help his harem make it big in whatever industry they like.
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- Anonymous Coward, 6 Apr 2011 @ 5:32am
  
  Re:
  How quickly will Berlusconi realize this will pull down his empire because of one link to an infringing source at one of his media companies.
  
  I bet there are a couple of hundred links.
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cc (profile), 6 Apr 2011 @ 4:21am

An internet company would have to be insane to do any sort of business in Italy given this sort of thing. They should all pull out as a form of protest, and I'm sure there are lots of countries that would gladly have them.
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Jeremy Lyman (profile), 6 Apr 2011 @ 4:21am

Compromise
Hollywood should just move it Italy.

And then we can turn off the Internet there.
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- Richard (profile), 6 Apr 2011 @ 4:30am
  
  Re: Compromise
  Better still why not build a replica of Italy in the desert spaces of western US (I believe they've already started in Las Vegas) and move Hollywood, Berlusconi and all the other stupid italians there - then we can keep the real Italy online. (It is rather nice after all).
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  - Richard (profile), 6 Apr 2011 @ 4:31am
    
    Re: Re: Compromise
    Another advantage is that the Las Vegas Review journal is already there!
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    - Greg G (profile), 6 Apr 2011 @ 6:14am
      
      Re: Re: Re: Compromise
      Can we do this AFTER my vacation to Vegas this year?
      
      There's enough sweet, sweet debauchery there without adding to it with Hollywood or Berlusconi.
      
      The move may commence in September. This allows nearly a month for Vegas to recover from me being there before it is inundated with the idiocy that is Hollywood/Italy.
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      - Richard (profile), 7 Apr 2011 @ 2:06am
        
        Re: Re: Re: Re: Compromise
        Once Hollywood/Berlusconi etc have moved - you could go to real Italy instead!
        The real Venice is much nicer than the Las Vegas version. Of course you might be going for the gambling - in which case I suggest Rome where you can gamble for higher stakes - your life in the traffic!
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The Devil's Coachman (profile), 6 Apr 2011 @ 4:46am

Hey, these judges and politicians work hard for their bribes
We shouldn't begrudge them the fruits of their "labors", should we? If US judges can be bought like Times Square hookers, it would be hypocritical to hold these guys to a higher standard.
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- Anonymous Coward, 6 Apr 2011 @ 6:16am
  
  Re: Hey, these judges and politicians work hard for their bribes
  Why are you trashing Times Square hookers by implying that they are less moral than judges?
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Michael, 6 Apr 2011 @ 5:00am

Web?
"In fact, the explanation notes that Yahoo can't even link to another (legal) website that contains links itself to infringing works"

How can that even be possible? The google engine is pretty good, but they have to make it exclude every link to a particular url and then all sites that link to that same url? What determines a site? Do you just not include pages in the search results, or do you have to exclude entire domains because they have one infringing page? What if the site is using generated code so the url is not in the html until a user clicks a button? What about url shortening services?

It does not take long to come up with some impossible scenarios.
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MAC, 6 Apr 2011 @ 5:43am

Idiots...
These are the same people that live right next to a volcano (Vesuvius) that is a historically proven killer on a massive scale.
Go figure...
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- Richard (profile), 7 Apr 2011 @ 2:17am
  
  Re: Idiots...
  San Andreas Fault, Yellowstone National Volcano (Yup the whole park is a volcano crater - when it blows again the whole western half of the US will disappear.
  
  Vesuvius is tame by comparison - even Italy itself has bigger and more active volcanoes (Etna, Stromboli)
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Anonymous Coward, 6 Apr 2011 @ 6:04am

"The reality, of course, is that it's just going to frustrate consumers, because search engines now have incentive to take down all sorts of perfectly legitimate search results to avoid liability."

That's exactly what the content providers deserve - to have every single search result referencing their product removed, even the ones that help them make legal sales. Yahoo has to cover it's a*s after all, so they should just use the nuclear option.
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- Chris Rhodes (profile), 6 Apr 2011 @ 7:17am
  
  Re:
  I approve of this. Remove any website that references their work in any way.
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  - ChurchHatesTucker (profile), 6 Apr 2011 @ 8:47am
    
    Re: Re:
    Simpler to just point any search from an Italian address to this court decision.
    
    Oh, wait. Does the decision cite the offending domains? Even that would be illegal.
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Anonymous Coward, 6 Apr 2011 @ 6:05am

Yahoo should give them what they want...
...by firewalling out all network blocks allocated to Italy, thus effectively removing its presence from the country. This would take about 5 minutes of any competent network engineer's time.
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a-dub (profile), 6 Apr 2011 @ 6:34am

I also blame google for all the grandma porn that it shows me when I search for grandma porn. I think they should go down for that too...as a matter of principle. Im just sayin
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- Chris in Utah (profile), 6 Apr 2011 @ 6:39am
  
  Re:
  ^this
  
  victim of lemonparty i'm sure
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  - ChurchHatesTucker (profile), 6 Apr 2011 @ 9:16am
    
    Re: Re:
    Lemon what?
    
    *googles*
    
    Damn you Google!
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Doug, 6 Apr 2011 @ 6:46am

That's Italian!
This strikes me as a typical Italian national response to problem solving. Blame anybody but the culprit.
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Mel (profile), 6 Apr 2011 @ 6:54am

fall of the Roman Empire
Following this line of thinking, Italy should be held responsible for every car accident, since they provide the roads that the accidents take place on. And add in the crimes where criminals exploit the roads to commit their crimes.

It was this type of bureaucratic thinking that brought Rome to it's knees. Doesn't Yahoo know how to grease the skids?
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Sean T Henry (profile), 6 Apr 2011 @ 7:33am

Good to find infringement
Italy making it easier to find content. Since they require infringing sites and links to be removed now all that someone needs to do is make an app(lication) that will search your chosen search engine and yahoo Italy, any links that popup on yahoo is removed from the results you are shown. That way you will only see known sites with infringing content.
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Tor (profile), 6 Apr 2011 @ 10:15am

I wonder how the court could reach that conclusion. Here is what the E-commerce directive says:

Article 13 - "Caching"

1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information's onward transmission to other recipients of the service upon their request, on condition that:

(a) the provider does not modify the information;

(b) the provider complies with conditions on access to the information;

(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;

(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and

(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.

Now one could perhaps assume that the court is referring to either (b) or (e) here, but to my knowledge Yahoo only provides links in this case. If a link that leads to infringing material is openly published I cannot see how (b) could apply. Surely the copyright owner cannot claim that Yahoo violated an access condition in collecting the link when it was openly published by a third party. If the court felt that (e) applies then it's very difficult to see why this should apply transitively.

Personally I'm skeptical to whether article 13 should be applied to the links that search engines provide.
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