La decisione del Tribunale affronta una delle questioni del diritto dell'internet oggi più dibattute ovvero quella relativa alla configurabilità di un obbligo di sorveglianza in capo all'intermediario della comunicazione nonchè quella connessa ai costi di tale eventuale sorveglianza.
Il Tribunale di Roma con il provvedimento dello scorso 11 febbraio ha confermato la decisione con la quale, il 23 dicembre scorso, nell'ambito di un procedimento cautelare in corso di lawsuit brought by RTI, had ordered Google to remove YouTube videos of all the Big Brother 10 published and, especially, not to allow the release of more video.
The ruling addresses one of the questions the right of the internet today that the most debated on the configurability of a monitoring obligation on the part of the communication to the intermediary and the associated costs of any such surveillance.
The Court of Rome, in fact-in 'order made in the complaint-recognizes that work is carried out on Youtube web hosting and, therefore, mediation communication to which we must apply the rules on electronic commerce as well as admits that this rule precludes brokers to charge for a general obligation to monitor communications.
For a time, however, the judges felt that inhibit the intermediary to publish, in future, similar content to those affected by the order of removal does not violate this principle.
This is a conclusion that is not convincing and that it is "elusive" in relation to the Community principle: do not order but is obliged to monitor, for the future, not post-or rather-be published in full awareness that this assumption has to prior surveillance.
No provision of Italian law, however, seems to justify an injunction scale large enough to embrace the publication of works identified only in general both at present and in the future.
The same Article. 156 of the Copyright Law, place RTI from the foundation of their demands, on the other hand, while recognizing the rights holder may also act against the broker-regardless, however, the responsibility of the latter- to obtain the injunction is a continuation of a certain policy, states that this provision should be qualified by the provisions of the Directive on electronic commerce and, therefore, among others, also with one that excludes any obligation of monitoring the intermediary.
A variety of reasons, On the other hand, the decisions of judges in intellectual property would end up-as indeed happened in this case-with having a general and abstract-similar in substance to that of the law-and to reiterate the simple content of a legal precept : the argument that it is forbidden to publish other people's content without permission of the copyright owner.
would be a bit like if-online-offiline or a judge could order a specific subject not ever violate the copyright of a certain owner.
It is, however, a matter which-just as the judges of the Court of Rome makes its decision, the Court was concerned Justice of the European Union.
The Court of Appeal of Brussels, in fact, in a ruling last January 28, asked the judges in Strasbourg to rule on the compatibility with the European rules on electronic commerce of a national standard that recognizes the power of the court order to an intermediary communication installing filters intended to prevent the exchange-by-its users through P2P platforms of material covered by copyright. The Belgian
Judgement was delivered in the now famous dispute arose back in 2004, which is between the corresponding SABAM-Belgian our SIAE-and Scarlett, an internet service provider. Although
with distinction in the case the two disputes have strong moments of contact, in both copyright holders have sought and obtained interim-stage-at least for an order directing the communication to intermediaries to inhibit the continuation of a pipeline put in place by its users in the present and the future.
Returning to Italy, however, at this point, you just have to watch what will be the determination of that Tribunal of Rome in relation to the ways in which Google will have to comply with the order of injunction. As was the case in Belgium in the dispute called Sabam c. Scarlet, in fact, that decision is probably more important than merit.
It is, in fact, to determine who should pay for the technology and resources necessary to inhibit the future publication by the users more content, what percentage of the fallibility of technology to be adopted is considered "excusable" and, more importantly, what are content that Google will inhibit the release on YouTube.
seems difficult to argue-although this is the position of either party-that the costs of preventing piracy of audio-visual platform or through the infrastructure of an intermediary can be placed pressure on the latter because it would be like believing that the weapons factories are required to install at its expense metal detector almost everywhere to prevent the risk that their products are used for unlawful purposes or, rather, that the company is required to ensure highways at their own expense, about the same use of highways for contraband or other illegal activities.
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