When it comes to passing judgment on so-called ‘pirate’ sites, Italy has more experience than most around Europe. Courts have passed down many decisions against unlicensed sites which have seen hundreds blocked by ISPs.
Today, however, news coming out of the country suggests that the parameters of what defines a pirate site may not be so loosely interpreted in future.
It began in 2015 when the operator of four sites that linked to pirated movies was found guilty of copyright infringement by a local court and ordered to pay more almost 600,000 in fines and costs. As a result, filmakers.biz, filmaker.me, filmakerz.org, and cineteka.org all shutdown but in the background, an appeal was filed.
The appeal was heard by the Rome Court of Appeal in February and now, through lawyer Fulvio Sarzana who defended the sites’ operator, we hear of a particularly interesting ruling.
“The Court ruled that the indication of links does not qualify as making direct disposal of files protected by copyright law,” Sarzana told TF in an email.
Often in these kinds of cases, the presence of a financial motivation by a site operator can play a crucial role. In this matter, however, even revenue generation via advertising failed to tip the scales in the prosecution’s favor.
“The Judge has recognized as lawful the portals’ activities, and this despite the presence of advertising banners,” Sarzana says.
According to the lawyer, it is not enough to simply show that the ‘pirate’ site generates income. The prosecution must also show that profit activity is connected to an individual. If it does not, the sharing aspect could be considered as merely avoiding an expense rather than a for-profit activity designed to generate “significant gain”. In the event, that’s exactly what happened.
“In fact, the Judge ruled that file sharing, i.e the sharing of files protected by copyright, is a saving of expense and not a for-profit business. Therefore, in these cases you cannot apply the penal provisions of copyright law and the resulting administrative sanctions,” Sarzana notes.
The decision to clear the sites of all charges and overturn the financial penalties against their operator is bound to prove a controversial one, not just locally but across the EU as a whole. Only time will tell how the decision will affect the bigger picture.
Meanwhile, the complexities of the case have not been lost on Federico Bagnoli Rossi, Secretary General of the Federation for the Protection of Audiovisual and Multimedia Content (FAPAV). He believes that traditional legal avenues are not the only way to tackle the piracy problem.
“We are aware of the difficulties encountered in investigative activities and for this reason we are convinced that intermediaries should assume their responsibilities and work more closely with all parties involved in protecting culture,” Rossi says.