Italy’s top court rules in major Yahoo takedown case

A notice and takedown request does not have to include the URL of the infringing content, Italy’s Supreme Court has ruled.

On Tuesday, March 19, the court issued two rulings after television station Radio Televisive Italiane (RTI) accused Yahoo of hosting material that infringed RTI’s copyright on its video-sharing portal. 

In its decision, the Supreme Court determined that a notice and takedown request does not have to include the URL of the infringing content and that the submission of such a request also imposes a ‘stay down’ obligation on the provider, meaning they must prevent the re-uploading of the same infringing content.

The case dates to 2011, when the Milan Court of First Instance found Yahoo liable for hosting unauthorised content owned by RTI on its video-sharing service.

This decision was reversed by the Milan Court of Appeal, which held that Yahoo qualified as a hosting provider eligible for safe harbour protection, protecting internet service providers from the consequences of their users’ actions.

In an appeal to the Supreme Court, RTI said Yahoo could not qualify for protection under the safe harbour because it was an active host.

In its decision, the Supreme Court held that a provider was active and ineligible for safe harbour protection when it performs activities such as filtering, selection, indexing, organisation, classification, modification or promotion of the infringing content.

It said Yahoo was liable only if it was aware of a users’ infringing activity and failed to bring the activity to an end.

The court also determined that for a provider to be “aware”, the rights holder does not need to send a formal cease-and-desist letter and rather a simple form of communication is enough.

The court determined that a simple indication of the title of the infringing content could be enough, and a URL was not always needed. It said a URL is required only when "indispensable" to identify the infringing content.

The Milan Court of Appeal must now assess whether, at the time when the infringing content was uploaded, it was possible for Yahoo! to identify the infringing videos through the titles of the videos alone.

Regarding Yahoo’s search engine, RTI alleged that by providing hyperlinks and embedded links to the infringing content, Yahoo directly infringed its copyright.

But, the Supreme Court upheld the Milan Court of First Instance’s finding that Yahoo qualifies as a caching provider and is therefore eligible for safe harbour protection.