Publié initialement dans la newsletter EDRi-gram.
On 12 July 2012 the French Supreme Court (Cour de Cassation) issued four important and somewhat contradictory rulings regarding the role of online service providers in policing online copyright infringements.
In the first case, SNEP vs. Google France, the Court’s decision could lead the search engine to censor its autocomplete 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 the suggestions “Torrent”, “Megaupload” and “Rapidshare” when users typed the names of artists or music bands in the Google search bar.
Both the Court of First Instance and the Appellate Court had rejected SNEP’s demands that Google stop suggesting the names of these online services. They insisted that the latter were not illegal in themselves, even though they could be used to infringe copyright. As a consequence, they claimed that SNEP’s rights were not affected by Google’s service, and that the company could not be held liable for such “potentially infringing uses”, nor be forced to censor its automatic suggestions.
But the Supreme Court overturned these rulings, rejecting the lower courts’ legal reasoning. The judges held that Google’s autocomplete feature actually “provided the means to infringe copyright and related rights”, and that the measures required by SNEP, while not being totally effective, could in fact “prevent or terminate such infringements”. The case is now referred back to a lower court to be judged once again.
Interestingly, this ruling comes six months after Google decided to voluntarily remove “Rapidshare”, “uTorrent” and “MegaUpload” from its Google Suggest service. However, according to the SNEP’s executive director, David El Sayegh, Google must do more in the fight against file-sharing. “This ruling demonstrates that search engines must participate in the regulation of the Internet”, said El Sayegh. As a result of this decision, Google will be under increased pressure to come to a settlement with rights-holders organisations.
In three other separate but similar rulings, the Supreme Court upheld the rights of Internet users and service providers against the right-holders’ claims. The Court’s decisions in these cases mark the end of “notice and staydown” injunctions in France, which were becoming increasingly popular in Court rooms. In all three cases, the appeal court had ruled that Google did not adopt adequate measures to prevent the re-indexation of videos or images that rights-holders had previously notified as infringing and which Google had then promptly removed. Such rulings would have eventually forced Google to monitor its users’ activities and filter-out uploaded content, so as to prevent any of its users from publishing content that has already been notified and taken-down (hence the term “notice and staydown”, as opposed to the traditional “notice and takedown” regime).
Through its decision, the Supreme Court rejected the notion that online service providers are under the obligation to prevent any future infringement. According to the Court, the three appellate rulings violated EU and French law by imposing “a general obligation to monitor” the content that Google stores, as well as to actively “seek illicit uploads”. These decisions would have led Google to implement a “blocking mechanism with no limitation in time”, which would be “disproportionate to the pursued aim”, the Court said. Whereas the EU Court of Justice recently rejected blocking measures based on five cumulative criteria in the Netlog vs. SABAM case, the French Court deems that the “no limitation is time” criterion is enough to qualify blocking measures as disproportionate.
These rulings against “notice-and-staydown” will bring clarity to the ongoing debate on the future of the EU e-commerce directive and the dangers of blocking measures. However, when considered together with the decision on Google’s autocomplete feature, this mounting case law will unfortunately encourage rights-holders to keep on pushing for closer “cooperation” of online service providers in copyright enforcement, thereby leading to privatised censorship schemes.
French Supreme Court decision – SNEP vs. Google France (only in French, 12.07.2012)
French Supreme Court decisions – Bac Films vs. Google France and Inc (1 & 2) (only in French, 12.07.2012)
French Supreme Court – André Rau vs. Google & AuFeminin.com (only in French, 12.07.2012)
France: Google may have to censor for piracy after all (16.07.2012)
Music: Google’s suggestions (once again) in front of the judges (only in French, 13.07.2012)
The Supreme Court opposes content blocking by hosting companies (in French only, 18.07.2012)
(contribution by Félix Tréguer – EDRi-observer La Quadrature du Net)