The Rome Lower Court of Review Special Section has determined that link to files protected by copyright or render its embed into your web pages does not constitute any crime and does not constitute sufficient activity to justify the seizure of a website.
On November 29, the Court accepted the appeal presented by ‘ lawyer. Fulvio Sarzana S. Ippolito (Law Firm Roman Sarzana and Associates ), who on behalf of the site had requested the annulment of the decree on confiscation. The reason is easily explained: the decision of the GIP was not aligned to the recently established by BESTWATER and Svensson judgments, the European Court of Justice, which once again confirmed the legitimacy of the activities of linking and embedding from portals like YouTube. It is the first time, in Italy, that apply these principles. The lawyer expressed his satisfaction.
The spread on a website, through so-called embedding, of a protected work does not qualify as “made available to the public” and, therefore, is not an infringement of copyright to the extent that the work is not directed to a new audience or disclosed with a technical method different from that used in the original communication.
The other 151 sites covered by ‘ Odyssey operation remain subject to seizure. This position of the Court.
The seizure order does not contain any assessment as to the condition of eligibility established by the prima commissi delicti, limiting the phase judge to indicate the offense for which to proceed against persons unknown, without having made any assessment on under which it may be considered integrated at the level of a prima, the assumed offense. The lack of any motivation on the prima of the crime the annulment of the contested decree and the return, by the Public Prosecutor of what was seized to the person entitled.
It is therefore determined that embed content within their site, although this has been put online by third parties in violation of copyright not a criminal offense and the responsibility of the violation can not fall on those who performs embed.