Foreign Cloud must block copyright-infringing access

Domestic Courts have jurisdiction over copyright infringements committed through a foreign-based cloud. With its 4 November 4, 2022 ruling, the XIV Section of the Milan Tribunale delle imprese (Business Court) marks a significant point – although still only of merit – in the fight against online piracy – by Andrea Monti – Initially published in Italian by IlSole24Ore
The ruling concerns the complaint brought by the American provider Cloudflare against Sony Music Entertainment Italy, Warner Music Italy and Universal Music Italy. It was related to the service provider’s refusal to respect the order to block user requests to its DNS to access copyrighted works and illegally disseminated by third parties not connected or direct users of the provider’s services.

Confirming the preliminary order  issued last July, the Court established that national jurisdiction exists when the thema decidendum concerns copyright infringement and related rights of a subject of Italian law. No less significant is the extent of the principle according to which it is legitimate to extend the blocking of aliases that “point” to illicit services, subject to actual verification of the traceability of the aliases to the addresses involved in the dissemination.

The Court also held that a blocking order can be issued against third-party operators without direct relationship with the perpetrators of the unlawful conduct. What matters is the possibility for anyone to use open services to reach illegally disseminated content, regardless of the responsibility of the recipient of the order.

Another part of the decision intended to establish jurisprudence is the one that exempts the authority from having to precisely indicate the specific technical methods for executing the inhibition order on the accessibility of the disputed contents.

This ruling raises perplexities in balancing the protection of copyright and respect for the principles of operator neutrality. However, it also allows us to infer that when the illegal content is located in the same jurisdiction as the right holder, the measures and orders of the national authorities should be directed exclusively against those who memorize and disseminate the contents and not indiscriminately towards all other operators.

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