Now more than ever, technology is influencing the way we do business, communicate, move through and around the world, access and manage our homes, receive and administer healthcare, make purchases, secure information, and protect our most valuable property. Morrison Foerster keeps pace with this rapidly evolving landscape across our internationally recognized corporate, finance, intellectual property, and litigation practices. MoFo Tech brings together our insights relating to fields such as blockchain and distributed ledger, cloud and as-a-service technologies, driverless cars, drones, fintech, computer hardware and software, the Internet of Things, semiconductors, and telecommunications. The MoFo Tech blog offers real-time, in-depth analyses of the trends and complex issues shaping the global technology industry.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Scott Llewellyn’s practice focuses on complex litigation in federal and state courts around the country, with an emphasis on patent and trade secret disputes. Over the past decade, he has worked on some of the most significant, high–profile IP cases involving technology for televisions, smartphones, and self–driving cars, relying on 40 years of experience with computer hardware and software. Scott also has significant experience with business divorce cases before courts and arbitrators, involving a mix of trade secret, patent, tort, and contract claims relating to technology development and implementation.Scott also has successfully tried general commercial arbitration and agency matters, briefed and argued various appeals in federal appellate court, and tried more than 20 cases for the Denver City Attorney’s office, most of them jury trials.Scott also has an active pro bono practice, having worked on a variety of criminal and immigration appeals, and having represented Colorado criminal defense and mental health organizations in high–profile suits against the state of Colorado for violations of the constitutional rights of defendants.At MoFo, Scott serves on the board of the Morrison & Foerster Foundation. In the broader legal community, he serves on the boards of the Colorado Lawyers Committee and Drop in the Bucket (a charity that builds wells and sanitation systems in sub–Saharan Africa).After law school, Scott clerked for the Honorable Clarence A. Brimmer, District of Wyoming, and the Honorable Diarmuid F. O’Scannlain, Ninth Circuit. He was also previously an adjunct professor at the Georgetown University Law Center.

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Scott Llewellyn’s practice involves complex litigation before state and federal courts around the country, with an emphasis on patent and trade secret disputes for high-tech companies, to which he brings more than 35 years of experience with computer hardware and software, in particular relating to the processing and transmission of audio, video, voice, and other types of data. Mr. Llewellyn has also tried commercial arbitration and agency matters; briefed and argued various appeals in federal appellate court; and tried more than 20 cases for the Denver city attorney’s office, most of them jury trials.

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Online platform operators have a rare cause to be cautiously optimistic at news from the European court. In a recently-published European Court of Justice (ECJ)

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Determining Liability For Illegal Uploads to Online Platforms: An ECJ Opinion Decides in Favour of Platform Operators

Determining Liability For Illegal Uploads to Online Platforms: An ECJ Opinion Decides in Favour of Platform Operators | MoFo Tech

Alistair Maughan

Mercedes Samavi

Online platform operators have a rare cause to be cautiously optimistic at news from the European court. In a recently-published European Court of Justice (ECJ) opinion, Advocate General Henrik Saugmandsgaard Øe stated that, under the current EU legal regime, operators should not be directly liable for the illegal uploading of protected works by platform users. This addresses a recurrent issue over the last few years, whereby platform operators have repeatedly argued that they cannot be held responsible for the activities of platform users.BackgroundThe Federal Court of Justice in Germany originally referred questions to the ECJ in relation to cases involving a music producer who initiated proceedings when recordings, to which he asserted rights, were uploaded to YouTube without his consent; similarly, a second case in which a claimant sued when materials, to which it held exclusive rights, were uploaded without its consent by platform users to an online file-hosting and sharing platform.The Advocate General’s opinion on the current legal regimeThe Advocate General took the view that, where a platform user infringes the exclusive rights of a creator by uploading protected works, the platform operator should not be held directly liable. His rationale covered the following points:<ul><li>Platform operators provide an intermediary service that enables users to carry out a “communication to the public”. Platform operators do not usually carry out such acts themselves. Consequently, any liability arising from such communication should rest with the users uploading such content.</li><li>Once a platform user initiates an upload, the upload itself is an automatic process—i.e., the platform operator does not actively select or determine whether the content should be uploaded.</li><li>The liability of persons facilitating a third party’s illegal “communication to the public” (i.e., secondary liability) is governed by the national law of each Member State, not by the Copyright Directive (2001/29/EC). </li><li>An exemption under the E-commerce Directive (2000/31/EC) may apply to platform operators where they do not play an “active role” that provides them with “knowledge of, or control over” the information, when storing files on the request of platform users. This exemption does not apply where platform operators have knowledge of the illegal activity or information and do not remove or disable access to the content promptly. Therefore, once platform operators are put on notice about infringing activity, they should take steps to rectify the problem and not stay passive.</li><li>Rights holders of protected works may obtain injunctions against online platforms, without needing to show improper conduct by the platform operator. </li></ul>The Advocate General’s opinion is, however, not binding on the ECJ (although such opinions are very frequently followed) and a formal ECJ judgment will be delivered by the ECJ following the Court’s deliberations.The Digital Copyright DirectiveThe incoming Digital Copyright Directive ((EU) 2019/720) adds another level of nuance to this matter (given that it is not due to be implemented into national law in the EU until 7 June 2021, it was not applied to these cases). In accordance with the Digital Copyright Directive’s liability regime, platform operators must obtain authorisation from relevant right holders where a platform user uploads protected works. So, in theory, platform operators should no longer have to argue over whether they have any control over what content is uploaded to their platform. Operators will either have the right authorisation or not.Of course, the one wrinkle is the <a href="https://mofotech.mofo.com/topics/uk-declines-to-implement.html">UK’s decision not to implement the Digital Copyright Directive</a>. This means that platform operators with dual presences in the UK and the EU could find more freedom in operating out of UK. We will continue to monitor both the UK’s developments in this respect, as well as the final judgment by the ECJ, in case either have a notable impact on platform operators and how liability is allocated.Jai Mudhar, London Trainee Solicitor, contributed to the drafting of this alert.

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