ONLINE PIRACY: FOR THE FIRST TIME EVER THE COURT OF MILAN ORDERS THE BLOCKING OF SERVICES ALSO TO A CDN PROVIDER
On October 5, 2020, the Court of Milan – Specialized Section of Enterprise, for the first time ordered a provider to immediately interrupt, in the management of the Content Delivery Network (CDN) service, the supply of all information society services and/or intermediation services – however qualified/qualifiable – provided in favor of online services that transmitted protected contents without authorization.
The Order confirmed a precautionary measure issued inaudita altera parte in September 2019 against some providers involved in the transmission of protected contents through online services. The Court ordered the intermediaries to immediately interrupt the supply of mere conduit and hosting services related to online services, regardless of the domain name used or the IP address number, in accordance with the provisions of Articles 14 et seq. D. Legislative Decree no. 70/2003, implementation of Directive 2000/31/EC (better known as the Ecommerce Directive).
In particular, pursuant to Art. 14, concerning mere conduits (i.e. those who provide access to the communication network) and Art. 16, concerning hosting providers (i.e. providers of information storage services provided by a recipient of the service), the judicial or administrative authority with supervisory functions may require, even as a matter of urgency, that the provider prevent or terminate the committed infringements. The same order may be issued, pursuant to art. 15 of Legislative Decree no. 70/2003, against providers of automatic, intermediate, and temporary storage services (i.e. „caching“ providers). Pursuant to Article 17 of Legislative Decree no. 70/2003, among others, the provider is civilly liable for the contents of such services if, requested by the judicial or administrative authority, it has not acted promptly to prevent access to said content.
One of the defendant intermediaries, a provider of CDN (Content Delivery Network) services, i.e. the accelerating transmission of contents, defended itself by raising some exceptions, including the lack of jurisdiction and its own lack of passive legitimation. In this regard, it stated that it could not be subject to the injunction order, since it would have just provided transitory data storage services consisting in optimizing the use of web services and that it had not manipulated, modified or operated directly on the contents of its customers‘ websites. For this reason, the Provider would not have had the possibility to intervene on the servers hosting the unauthorized content. With reference to the qualification of its activities, the Provider stated that a CDN service could not be qualified as a „hosting“ service, being rather a mix of „caching“ and „mere conduit“.
The Court of Milan considered the Defendant’s objection unfounded, stating that the service supplied by the Provider, by allowing unlawfully transmitted data to pass through the Internet via the Content Delivery Network (CDN) service without being stored, constitutes in any case a conduct that contributes – including through the temporary storage of static data – to permit third parties to carry out the unlawful action that is the subject of the proceedings. The Court has therefore clarified that all information society service providers are passively legitimated against actions for injunctions, regardless of their subjective element (which is not even investigated here), and also regardless of their role.
The Court of Milan has therefore fully confirmed the measure issued inaudita altera parte also against the CDN service provider, specifically ordering the latter to terminate in any case and immediately the supply of all information society services and/or intermediation – however qualified/qualifiable – provided in favor of abusive online services, regardless of the domain name or IP address number used by them.
This is an innovative decision, the outcome of a precautionary proceedings that lasted more than a year, by which the Court fully granted the claims of the owner of the rights and of the exclusive licensee. Indeed, for the Plaintiffs’ defense, it was undeniable that the CDN provider should be the target of the injunction order, like any other information society service provider, although not falling within the categories – provided for by the Ecommerce Directive – of mere conduit, caching, hosting service provider.
Moreover, according to the thesis of the Plaintiffs, the Provider’s activities could not in any case fall within the definition of „caching“, because the Provider’s services also included „storage“ activities carried out in a non-transitory manner, thus qualifying as hosting activities.
In any case, the qualification of the provider (mere conduit, caching or hosting) would not have changed the substance of the order that should have been issued against the operator, since – regardless of the qualification of the service rendered by the operator itself – the provider must terminate the illicit activities as soon as it receives the order from the competent court, this both on the basis of the Ecommerce Directive n. 2000/31/EC, the Legislative Decree 70/2003 and the general rules. Indeed, the failure to comply with the order is a cause of responsibility for the operator of the information society service that remains inert.
The Provider had also claimed its lack of passive legitimation on the basis of the consideration that the termination of its services could not have completely prevented the services from being provided through other means. Also on this point the Court considered that the argument could not be accepted, since it found on the one hand the involvement of the Provider in the illegal activities, and on the other hand the circumstance that the termination of its services could still produce useful results for the holder of the rights, even in terms of temporary suspension or difficulties in providing the abusive online service. The Court, on the basis of the evidence provided by the Plaintiffs, also found that the Defendant, on several occasions in Italy and abroad, had actually terminated the CDN services in relation to internet sites linked to copyright infringements on the basis of judicial orders.