The dispute over the legal classification must take the middle of the Internet to follow .. and do not look alike. After the decisions of the Court of Appeal of Paris in the business between the companies of the LVMH group site online brokerage as eBay auction, the third chamber Tribunal de Grande Instance of Paris has been called upon to revisit the site status under the law of 21 June 2004 on confidence in the digital economy.
MACEO The company noted the presence of various offers on eBay.com offering for sale of goods brand "April 77" trial by infringing the copyright holder. Having made various observations of bailiff between November 2007 and April 2008 she gave notice to eBay Inc. to cease such acts of counterfeiting and remove any reference to the trademark "April 77" of the website. She then decided to enter in June 2008 the court against eBay France, eBay Europe and eBay Inc.
Wanting to try that only the U.S. courts have jurisdiction, eBay had raised several objections to jurisdiction. In a decision dated December 2, 2009, the Paris Court of Appeal dismissing the website's claims. In its application, the company claimed to eBay MACEO over 300.00 euros in damages and argue in support of their claim that:
"companies eBay does not have the status of host but gainfully Brokerage auction conducted remotely by electronic means which is realized by a scheduling announcements, structure presentation framework and business management products actively concerned, highlighting certain categories of objects according to the news and tools available to vendors for the development of the property sold by which they receive a remuneration ".Maceo, eBay had
" an active role in the initiation, conclusion and track transactions because of suggestions of purchasing, provision of tool vendors and marketing management of their business, service, dispute resolution, the guarantee system and proportional commissions.In Accordingly, eBay because of his negligence and his failure to protect intellectual property rights must see its responsibility to be engaged " because of their advertising and promotional activities on the basis of Article 1382 of the Civil Code . In his
ruling dated October 26, 2010 , the Tribunal de Grande Instance of Paris has made several comments.
First, the Court recalls that under Article 3 of the Civil Code:
"the law applicable to non-contractual liability is that of the state of the place where the harmful event is produced, this place both agreeing that due to the damage that place of realization of the latter.He continued that the company MACEO acted on the basis of French and Community trademarks and seeks compensation for damage arising the infringement of these marks on French territory because " dissemination of offers to sell online site ebay.com. This site, if written in English and offers products in dollars nevertheless an international vocation and is used by Internet users worldwide .
Thus, the Court concludes that:
" the fact the company U.S. eBay Inc operates this site from the United States under the conditions described it is not likely to make U.S. law applicable to this case for an action for trademark infringement .
Indeed, French law has more connection with the facts of this case, the present action to enforce the rights of a holder of French and European brands, such securities does not produce an effect on national or European territory and examination of their suffering due to alleged infringement under the laws applicable in France.After review of the applicable law, the Court returned to the application of Articles 6-I-2 and 7 of the Act of 21 June 2004 on confidence in the digital economy. To decide on the application status of the host at eBay, the Court observed:
"It is not disputed that the site ebay.com offers Internet users worldwide the opportunity to sell and buy products through internet purchases in the virtual store can be made online or through auction.
should therefore assess whether the company eBay Inc. determines what content should be placed available to the public.
There is no evidence here that the company eBay Inc. shall monitor advertisements posted on the site ebay.com by the Internet offering to sell their products and therefore it determines the content available public. The fact that this company has designed the architecture of its site and its structure and technical means used to classify, develop ads and allow users to proceed with the sale does not give the quality of editor since it does not determine the content of ads posted by sellers.
Moreover, the fact that eBay company perceives INC. remuneration in connection with sales of more does not call it a content editor since nothing in the statute prohibits a host to take advantage of its site by charging a fee because of its services or by selling advertising space as such compensation does not determine the content of ads posted by users.
The LCEN has in effect limited to the sole criterion of selection of content made by the creator of the site, the condition to be editor.
Accordingly, INC. eBay company must be classified under the host LCEN. "As for judges, only one criterion must be sought: one who determines the contents that are posted on the site Internet . If the intermediary does not choose content, then only the status of the host seemed then applicable. The interesting point - and no doubt criticism - is the reference to LCEN. Indeed, the Tribunal de Grande Instance suggests that LCEN have defined the concept of editor. But the law remains silent on this point.
TGI resumed here the error in a decision of 5 February 2008 . Indeed, after quoting large sections of the LCEN, judges continued:
"Publishers are defined as" the person who determines what content should be made publicly available on the service it created or where it is responsible.. "Judges seemed to discover a definition of the publisher. But this definition Editor - since repeated in many judgments of the Court in Paris, not listed in any text .
Worse, I remain convinced me to an intellectual error to want to contrast two legal regimes routinely identified as one word, as host and the other publisher. The first refers to the status of technical intermediaries set by the LCEN (which does not use the term "host"). The second would refer to a legal regime in which the intermediary would be found liable - almost automatically - files stored on its servers.
Why, in my view, this dichotomy is false. Simply because the law does not recognize.
If we take legal texts, we have several plans Responsibility:
- the common law system fixed in section 1382 and following of the Civil Code. The idea - dating back to 1804 - is summarized as follows classically 'fault - cause - injury ". Thus, anyone who commits a fault for damage must be repaired. So the common law liability requires one thing: to demonstrate the existence of a fault.
- the derogation set within the LCEN the benefit of the Internet intermediaries defined in Section 6-I-2 of the LCEN. In this scheme, the provider's liability arises only if - having knowledge activity or clearly illegal content, it has not acted promptly to stop him or her.
- the derogation laid down in Article 93-3 of the 1982 Act in respect of infringements of press committed on the Internet. Here is the plan said publishers who applies the managing editor is responsible for the content it publishes.
- except in exceptional arrangements established in the last paragraph of Article 93-3 of the 1982 Act , except (widely disputed, we will talk soon!) HADOPI created by law and intended to alleviate editorial for discussion forums.
So if we summarize, we have 3 plans that may apply:
-
common law - the derogation of the LCEN for intermediate Internet
- the system of editorial responsibility for the only offenses press.
And then, of course, sometimes I wonder: why try at all costs qualified as "editor" an intermediary of the internet in a case of forgery. Because even qualified as a publisher, only the common law system or that of LCEN applies; two systems totally indifferent to the qualification of publisher.
Indeed, as previously reported quickly, the system assumes that the editor managing editor assumes responsibility for others. In the dissemination of such classifieds on a platform of content, the responsibility of the site will not be automatic: either it will fit into the criteria set by the LCEN (if you're on the ground plan of the host), or it will require the victim to demonstrate the existence of a fault on the part of the intermediary. Some might argue
that mere distribution of content under investigation demonstrates the existence of a fault, namely a violation a duty of care and / or monitoring that no illegal content will be released on the platform. But this is false. Let's do some legal analogy and go back to the time Altern business at a time when no derogation had been established by law. The hosts were then judged on the grounds of law and judges sought if faults could be charged to such intermediaries as a result of the dissemination of content.
In a decision dated June 8, 2000 (symbolic, because it is the date of the eCommerce Directive "), the Court of Appeal of Versailles and thought:
"Considering that during the course of its business, a company hosting provider is under an obligation of vigilance and caution (...) which amounted to an obligation of means on the precautions and controls implemented to prevent or stop the storage and delivery of messages contrary to applicable law or prejudicial to the rights of third parties, that this requirement means that does not involve consideration General and systematic content of hosted sites, must still be translated at the stage of formation of the contract with the client-designer site, through preventive measures such as the prohibition of anonymous or non-identification, membership in a charter of conduct or other process incentive compliance with the law and the rights of individuals and, at the stage of execution of the contract, by appropriate due diligence to identify any site whose content is illegal, illicit or harmful to cause adjustment or discontinue the service; regardless of where it is required by public authority or court decision, such audit must be spontaneously proposed by the company hosting provider has knowledge or is informed of the illegality of the wrongfulness or harmfulness of the content of a site or when circumstances or conditions for the realization of the development or consulting a website, which must ensure by tools, methods or technical procedures of analysis, observation and research, are able to suspect the contents, that in these cases, these coaches are not under the control of the judge, other limitations that incompetence or abuse of law of the host to appreciate the unlawfulness, illegality or harmfulness of the content at issue; outside these assumptions, it can not be criticized for this host of not controlling the content of a site that could legitimately ignore ".This decision by the Court of Appeal of Versailles made - again - as the common law system says it all: 1) a fault must be demonstrated, 2) an obligation of means is the responsibility of the intermediary 3) intermediary who must implement appropriate measures.
These principles had already been taken in several cases. Going further, a case existed to assess the requirements that were put in charge of the intermediary. It was and accommodation by Multimania site for the "Nazi Party", the Nazi party. The judges had been seized and it responded:
"the responsibility of the host must be assessed according to its own powers and not on the ideal skills of others versed in the field of fight against racism and antisemitism , no fault could be upheld against Multimania. " ( TGI Nanterre, 24/05/2000 )Clearly, one could not blame Multimania not have "word-clétiser" the term "Nazi Party" because of its own powers.
To return to decision of the Tribunal de Grande Instance in Paris on October 26, 2010, it is - in its legal reasoning - criticism in many respects :
1 / judges reverse liability regimes . They look so eBay can receive the quality of "editor" (meaning subject to the law of tort). And then, as it can not be a publisher, he is host.
The legal reasoning is absurd: When there is a principle and an exception, it first looks if the material is considered the exception. And if she can not fall within the exception, it remains in the field of law.
Thus, to determine what liability regime applies to eBay, the judges should have sought if eBay could take the qualification of host and under any circumstances seek if eBay does not take the quality falsely classified as editor.
Finally, the reasoning of the Tribunal de Grande Instance of Paris ended only a single outcome: making derogatory regime posed by the LCEN, common law and civil law transformed into pure exception.
2 / judges are improperly referred to the concept of editor. I explained above. In terms of counterfeiting, whether or not the intermediary is "publisher" has absolutely no sense.
The only question we must ask is whether - in a positive way - the intermediary in question falls within the definition of the host or not.
3 / judges did not go far enough in their analysis . By staying on the simple search whether or not eBay is editor, judges have not made a correct legal analysis.
4 / In front also, especially in view of the trial, it seems that applicants would not go far enough . If we retain their analysis, namely that eBay can not benefit from the scheme of the host (and therefore falls within the common law system), the elements transcribed in the trial can not determine whether or not applicants have sought to demonstrate mistakes of the intermediary.
So this decision is a bad decision. Not because of its conclusion, but simply in terms of legal reasoning by judges . The only thing that many people will remember is simple: eBay is hosting, counterfeiting thrives. But this is false. And behind this are decisions like this often, too often, can be used to support demands for a revision see a disappearance of the derogation of Internet intermediaries .
So we can draw only one thing: a better legal analysis of the situation. It is imperative that in disputes like these, extreme rigor be followed:
- analyzing the situation;
- whether or not the situation between the forecast of an exception;
- failing to make a law enforcement common.
This is the condition that the famous scheme of the Internet intermediaries will remain, because he probably still destined to endure to allow the Internet to continue its development and offer real scope for innovation.
Source: TGI Paris, 3rd Ch, 26.10.2010, LLC MACEO and a. v. eBay Inc., eBay Europe SARL and SA eBay France (unpublished)
Author: Benoit Tabaka - http://tabaka.blogspot.com 
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