Links to streaming sites are permitted

Making copyrighted files available online is not, in and of itself, an illegal activity. This is what the Court of Frosinone recently acknowledged when it overturned a fine of over 550,000 euros imposed on the operator of websites that allow users to watch pirated movies online. To be precise, the judge upheld the appeal against a 2015 order, which had required the website to pay a sum of money as an administrative fine for violating Article 171-ter, paragraph 2, letter a-bis of Law 633 of 1941. According to the court’s judges, in fact, copyright infringement on websites hosting links to streaming movies and music is not automatic, but requires an investigation to establish the existence of a profit motive, an element required by the text of Article 171-ter. In this specific case, the judge ruled out the presence of a profit motive, despite the website’s use of advertising banners. The sharing of copyrighted files, according to the Court of Frosinone, constitutes a cost-saving measure rather than a for-profit activity; therefore, neither the criminal provisions nor the resulting administrative sanctions provided for by Law No. 633 of 1941 would apply. “It must be demonstrated that the profit-making activity is linked to the individual work and that it constitutes the consideration for it, because otherwise we are dealing with a cost-saving measure and not an activity of making works available for profit,” says the website operator’s attorney, Fulvio Sarzena. “It follows that, for the offense in question to have been committed, evidence must be gathered of the file sharer’s specific intent to derive, from the communication to the public through the online sharing of protected works, a financially significant gain and not merely a cost saving,” reads the curious ruling. The judge did not find sufficient evidence to demonstrate that the site’s earnings were directly linked to the individual pirated films whose links were available on the site. For the first time, proving the concrete profit motive of such sites was considered relevant in determining a penalty. The intent to profit is the essential requirement for criminal liability, and, according to the ruling, it will no longer be possible to automatically block a site that provides direct links to movie streams. But what does Italian copyright law stipulate, and why is this ruling controversial? The general rule is found in Article 171, Paragraph 1, Letter a-bis, which provides that “anyone who, without authorization, for any purpose and in any form, makes available to the public a work of intellectual property protected by copyright or part thereof by transmitting it into a computer network system via connections of any kind shall be punished with a fine ranging from €51 to €2,065.” However, this provision is superseded by Articles 171-bis and 171-ter, paragraph 2, when, respectively, there is unauthorized duplication of computer programs or the duplication, for profit, and sale of copyrighted works. Furthermore, Article 174-bis provides for the imposition of an administrative penalty applicable to all violations of copyright law set forth in Section II of Chapter III of the Copyright Act and thus to those acts that also constitute a criminal offense. It would therefore appear that the judges of the Lazio Court strictly applied the provisions of Article 171-ter, requiring that the intent to profit be the result of a specific investigative activity, while overlooking the entire regulatory framework in which this article is embedded and the rationale underlying it: to guarantee the author of an intellectual work ownership of the related moral and economic rights. For this reason, until now, web platforms disseminating links for streaming have always been blocked. Furthermore, in this specific case, the presence of advertising on the site would constitute the profit motive required by the law, as it is not necessary for every single link to be accompanied by a specific advertisement. The ruling is already sparking debate, and many are calling it a significant step backward in the fight against piracy.