Court Overturns ‘Pirate’ Site Blockade Based on EU Ruling

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A site that was outlawed following mass court action against more than 150 domains has been cleared on appeal. Kisstube embeds movies, some of them infringing, hosted on other platforms such as YouTube. However, the Rome Court of Appeal found that according to an EU ruling, merely embedding pirated content is not illegal.

Early November, police in Italy targeted more than 150 sites involved in the unauthorized streaming of movies and sports.

The Special Units of the Guardia di Finanza obtained a mass injunction from a judge in Rome, heralding the largest ever blocking operation in the country.

At the time, Fulvia Sarzana, a lawyer specializing in Internet and copyright disputes, described the move as “sensational.” Since then he’s been defending one of the sites targeted by the sweeping action and now reports success thanks to an EU ruling.

Kisstube.tv is a site that acts an index for movies hosted elsewhere. A cursory skim through its archives reveals plenty of content in both Italian and English, mainly stored on YouTube.

According to Sarzana, until the action last month Kisstube had never received any infringement complaints. Nevertheless, it found itself blocked along with dozens of other sites without any pre-action discussion.

After being hired by Kisstube, Sarzana took the site’s case to the Rome Court of Appeal, arguing that it should have never been ordered to be blocked. At first view and perhaps surprisingly, the Court agreed and overturned the injunction against the site. So what was its reasoning?

Like many other similar sites, Kisstube hosts none of its own content. The site embeds videos that are stored elsewhere, on hosting platforms such as YouTube.

“The Kisstube portal links to YouTube, where there is the Content ID system and a notice and takedown system, just as there is a notice and takedown system on the Kisstube site,” Sarzana informs TorrentFreak.

“I do not know whether they are copyrighted films and allowed on YouTube, but in this case it should have been YouTube that removed any pirated movies. The site that embeds the content can not be held responsible.”

In handing down its decision the Court of Appeals considered two rulings from the European Court of Justice.

The first involved water filtering company BestWater International, who accused two men of copyright infringement after they embedded a Bestwater promotional video in their website in a YouTube frame. Even though the video had been uploaded to YouTube without Bestwater’s permission, the Court found that embedding the content in a third-party site did not amount to infringement.

The second more recent case involved Dutch blog GeenStijl.nl, which published an article linking to leaked Playboy photos which were stored on file-hosting site FileFactory.

“I do not like mass-blocking and am convinced that before a judge you can always explain your case,” Sarzana told TF following his win for KissTube.

However, the lawyer says that the future may be more complex. New rules under discussion have the potential to limit the freedoms of sites that rely on user-uploaded content.

“My fear is that the new EU rules on copyright under discussion are trying to put rules in place which would prohibit any type of linking and embedding to overcome the protection that the EU Court of Justice has guaranteed UGC portals like Youtube,” Sarzana concludes.

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