Can ISPs be held guilty for linking to bootleg movies?

The Association for Protecting Cinematographic Creations (1993), which represents companies such as 20th Century Fox, Disney, Warner, Paramount and DreamWorks, recently sued Rotternet Ltd, claiming that forums on provided links to copyright-protected films, thereby aiding and abetting their downloading.

Rotternet argued that "everyone does it" and that it removed any link or infringing copy if specifically asked to by the rights owner. However, it claimed that it was under no obligation to police its sites. The complainants argued that the removal on request provision was effective against innocent acts of infringement only, and completely ineffective against wholesale intentional actions.

Judge Ofer Grosskopf noted that although there have been some Knesset bills relating to the responsibilities of internet service providers (ISPs), these have never been passed. Thus, the issue remains open to judicial ruling and he had a duty to rule on it. In a well-reasoned argument, he dismissed the charges and ruled that supporting and displaying lists of links to films was not in itself a culpable act of infringement, and that so long as the ISP had a removal on request policy, it was not culpable for acts of infringement resulting from such links, provided that the sites were not dedicated to making pirate films available.

Films are copyright protected for 70 years. Making films available for download without the rights holder's permission constitutes copyright infringement. The film must be hosted before it can be linked to. However, since films can be uploaded and stored anywhere, the ISPs, which link to the pirate films, provide a more visible target for legal action in order to prevent such linking and minimise downloading. Despite enabling infringement by facilitating downloads, linking to pirate films is not infringement per se and the ISP is not responsible.

The injured parties can request individual links to be removed and can target the sites hosting the films. They can also take action against those uploading pirate videos. However, the ISPs are not legally responsible.

This decision relates to relevant Israeli case law and major cases in other jurisdictions, such as Perfect 10 v Google.

Notably, at the beginning of the ruling there seemed to be an implication that the act of downloading pirate movies constituted infringement. Towards the end of the ruling, it appeared that the judge's position on this issue had changed and that downloading without making a copy (ie, streaming and watching directly) was not an infringement.

The judge congratulated Rotternet on providing a spirited defence in this matter, which also involved other ISPs and is an important matter of principle. Rotternet was awarded NIS 50,000 in costs.

The ruling may have international ramifications as the United States is demanding that Israel make ISPs culpable. Together with Israel's position on patent term extensions, this is a key reason why Israel appears in the Special 301 Report Watch List.

TA 567-08-09 Association for Protecting Cinematographic Creations (1993) v Ltd.

This is an Insight article, written by a selected partner as part of IAM's co-published content. Read more on Insight

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