Paris Court of Appeal holds that Dailymotion is a host and did not have knowledge of infringing material

27 October 2009

Anne-Sophie Lampe

The Paris Court of Appeal has held, overruling a previous First Instance Court decision, that the Dailymotion video sharing website was not liable for copyright infringement since it had not received adequate notification that content posted to its website by users was unlawful.

On 6 May 2009, the Court of Appeal of Paris partially overruled a First Instance Court judgment, dated 13 July 2007 [click here to read more], in relation to proceedings brought against Dailymotion by the writer, director and producer at Nord Ouest Productions in relation to a film entitled “Joyeux Noël. Dailymotion was being sued for copyright infringement because the film “Joyeux Noël” was available on its website.  The first instance judgment was controversial since it suggested that general knowledge of the presence of infringing material on a UGC site was sufficient to fix the site owner with knowledge, so as to remove the protections for hosting providers under the Electronic Commerce Directive.

Article 6 of the Law of Confidence in the Digital Economy, which implements the EU Electronic Commerce Directive, states that a hosting provider may not be held liable, whether under civil or criminal liability, for storage activities or information it holds, unless it was aware of their unlawful nature (or of facts and circumstances pointing to such nature) or if, as soon as it became aware of this, it did not take prompt action to withdraw the information or to prevent access to such information.

The First Instance Court had originally held that Dailymotion was aware that illegal content had been posted on its website as the context was such that this could not be ignored. Dailymotion was therefore held liable for providing web users with the means to commit copyright infringement.

The Court of Appeal affirmed the First Instance Court’s judgment that Dailymotion is a hosting provider, despite the fact that it operates a commercial activity supported by advertising revenues. Accordingly, Dailymotion can only be liable under the conditions provided for in the Law on Confidence in the Digital Economy.

However, on the question of knowledge the Court of Appeal ruled that Dailymotion is not liable for copyright infringement because it did not have the required knowledge of the existence of illegal content. The Court pointed out that Article 6 of the Law of Confidence in the Digital Economy provides that notifications should indicate precisely which content is alleged to be unlawful, its precise location on the website and the reasons why it is unlawful. These conditions had not been complied with because Dailymotion had not been notified by the rights holders.

Since this decision, the First Instance Court of Paris on 10 July 2009 has held in another case that notification of (i) the rights held on a work and (ii) the presence of infringing copies of this work, was sufficient to fix the hosting provider with the required knowledge. In view of the Dailymotion decision this should be quashed on appeal.