French Supreme Court rules on intermediary liability for
copyright infringement. The French Supreme Court (Cour de Cassation) has
issued four opinions about the role of online service providers in guarding
against online copyright infringements. The case of SNEP vs. Google France may
lead Google to censor its “auto‑complete feature” (which automatically suggests
commonly‑used terms associated with the queries submitted by users). The French
phonographic industry lobby (SNEP) had sued Google for providing search
suggestions such as “Torrent”, “Megaupload” and “Rapidshare” when users typed
the names of artists or music groups into the Google search bar. Those
suggestions are associated with online copyright infringement. SNEP’s request
that Google stop suggesting such terms was rejected by both the Court of First
Instance and the Appellate Court. While such online services could be used to
infringe copyrights, they were not illegal in themselves. The French Supreme
Court reversed the lower rulings. The Court held that Google’s autocomplete
feature actually “provided the means to infringe copyright and related rights.”
SNEP’s request could in fact “prevent or terminate such infringements.” The
Court remanded to the lower court. Note that this ruling came six months after
Google decided to voluntarily remove “Rapidshare”, “uTorrent” and “MegaUpload”
from its Google Suggest service. | In three other separate but similar
opinions, the French Supreme Court upheld the rights of Internet users and
service providers against the claims of right holders. The Court’s decisions in
these cases end the “notice and staydown” injunctions in France, which were
becoming increasingly popular in courts. “Notice and staydown” injunctions
prevent internet users from publishing content that has already been notified
and taken down (thus “notice and staydown”, as opposed to the traditional
“notice and takedown”). In all three cases, the appeals court had ruled that
Google did not adopt adequate measures to prevent the re‑indexation of
infringing videos and images of which Google had been notified and which Google
had removed. The French Supreme Court did not find online service providers
under the obligation to prevent any future infringements. The three appellate
rulings violated EU and French law by imposing “a general obligation to
monitor” Google’s content. Google would have to implement a “blocking mechanism
with no limitation in time”, which would be “disproportionate to the pursued
aim.” While European Court of Justice (ECJ) recently rejected blocking measures
based on five cumulative criteria in the Netlog vs. SABAM case, the French
Supreme Court finds the “no limitation in time” criterion alone sufficient to
make the blocking measures disproportionate. Citation: French Supreme
Court decisions (so far published only in French), SNEP vs. Google France
(12.07.2012); Bac Films vs. Google France and Inc (1& 2) (12.07.2012); and
André Rau vs. Google & AuFeminin.com (12.07.2012)
**** Terik Hashmi is a business consultant serving businesses in the marketing realm. Among his clients are a medical service provider and an Online Reputation Management company. - Attorney Website at: https://terikhashmiattorney.com/ - Attorney Profile at: https://solomonlawguild.com/terik-hashmi%2C-esq# - Attorney News at https://attorneygazette.com/terik-hashmi%2C-consultant#eec97f53-49a0-4c94-869a-4847514cb694