(Dieser Artikel ist auch in deutscher Sprache verfügbar)

On 13 July 2007, a French court has ruled against the French company DailyMotion, second world leader of video-sharing platforms after YouTube, in a counterfeit case. The legal action was initiated by the director, the producer, and the distributor of a movie put on-line by a user of the DailyMotion platform. The court decision is entirely based on the French law on the digital economy (LCEN), and not the copyright law (DADVSI). The LCEN provisions onISP liability are a direct transposition of the EU E-commerce Directive. This decision is likely to constitute a major turn in the legal qualification of web2.0 services.

The court acknowledges that DailyMotion is not a content provider as claimed by the plaintiffs, but only a host provider, without any ambiguity, even though its economic model is based on revenues from advertisement, while the use of the platform is free of charge. Consequently, its liability is limited, according to the LCEN and to article 15 of the Directive. The second consequence acknowledged by the court, still according to this national and EU legislation, is that Daily Motion has no general obligation to monitor illegal content or illegal activities when providing, as host provider, its services.

However, the decision innovates in that it considers that this limitation of liability does not apply in the case of DailyMotion, since the illegal activities of its users are "induced or generated by the host provider itself". The court argues that "the success of the enterprise necessarily supposes the dissemination of works known by the public, solely able to increase the audience and to correlatively ensures incomes through advertisement."

Acording to French EDRI member IRIS, "this legal qualification of ISP without a general obligation of monitoring of illegal activities but with a general knowledge of illegal activities, on the basis of a given economic model, is new, and neither contained in the LCEN nor in the E-commerce Directive provisions.

While DailyMotion announced that it will immediately implement the "Audible Magic" system to forbid the upload of content blacklisted in a database of copyrighted works, IRIS warns against this a priori content control and this use of filtering as a panacea to fight illegal content. According to the digital rights NGO, this kind of content-sharing platforms should stick to the sole activity of host provider, generating their revenues only from providing space to store content under the sole responsibility of their subscribers. According to IRIS, this allegedly "free of charge" use of platforms is making fuzzy the repartition of liability between the platform users and providers, and, in the end, constitutes an obstacle to the preservation of freedom of expression, communication and information.

According to French medias, DailyMotion will appeal this decision, although the company finds it "globally positive, since it recognizes its statutes of host provider".

TGI Paris ruling against DailyMotion (in French only, 13.07.2007)
http://www.juriscom.net/documents/tgiparis20070713.pdf

DailyMotion, condemned for counterfeit , will filter Internet users videos (in French only, 17.07.2007)
http://www.01net.com/editorial/355007/dailymotion-condamne-pour-contre...

IRIS - "DailyMotion case: the Paris TGI writes the LCEN2.0" (in French only, 18.07.2007)
http://www.iris.sgdg.org/info-debat/comm-dailymotion0707.html

(Contribution by Meryem Marzouki, EDRI-member IRIS - France)