ONLINE PIRACY: THE COURT OF MILAN CONFIRMS THE PASSIVE LEGITIMATION OF A CDN (Content Delivery Network) PROVIDER TO CAUTIONARY INIBITORY ORDERS
With two orders of 12 and 15 February 2021, the Court of Milan, Business Division, confirmed the full passive legitimacy of an operator of Content Delivery Network (CDN) services to injunction orders aimed at blocking online services that broadcast protected content without authorisation.
The most recent decisions, which came at the end of two complaint proceedings started by an operator of CDN services (one of which contested the order commented HERE), have confirmed what has already been previously held in relation to the obligation also for a CDN provider to comply with the injunction order aimed at blocking the provision of services, qualified or qualifiable, provided for access to illicit IPTV services. In both cases, the Courts rejected the adversary’s claims that there was no passive legitimacy, since the intermediary was merely a provider of transient data storage services consisting in the optimisation of the use of web services.
First of all, the measures acknowledged the unlawfulness of showcase sites, i.e. websites which advertise abusive IPTV and promote them by enabling users to take out the unlawful subscriptions, make the payments and obtain the IT means to access the services themselves, in particular by claiming that the provider of CDN services allows the visibility of those showcase sites, including through the storage of data from such sites, and provides support and optimisation service, thus participating in the flow of data without the authorisation of the rights holder and therefore contributing causally to the infringement as it actually occurs.
As a consequence, such intermediary can certainly be the passive subject of the precautionary injunction falling within the scope of the protection under Articles 156 and 163 of the Civil Code, following the amendment introduced by Legislative Decree No. 70/2003 in implementation of Article 8(3) of Directive 29/2001, which allow the injured party to obtain protection, both as a matter of urgency and as a matter of full verification, against all the persons who contribute causally to the infringement of another person’s right, even though the fraction of conduct individually implemented does not in itself constitute an attributable infringement of copyright.
The technical qualification of the services provided was deemed irrelevant, considering that in all the cases covered by Directive 2000/31 and by Legislative Decree 70/2013 (mere conduit, caching, hosting) it is always provided that the judicial authority may require, even as a matter of urgency, that the service provider prevent or put an end to the infringements committed, regardless of the establishment of any liability in respect of the unlawful act.
Finally, both decisions confirmed the dynamism of such injunction orders, being extended to all ‘alias’ (i.e., further DNS and IP addresses used by IPTV operators to carry out the same illegal activity), following a specific communication from the right holders to the intermediary.