On August 8, 2010, the District Court in Petah Tikva handed its decision in Civil Action 567-08-09 A.L.I.S Ltd. et al. v. Rotter.net Ltd. et al. and held that a website owner will not be liable for Internet links that direct to copyright infringing material that were posted on a message board (forum) of the website, unless the website owner received notice and did not act to remove it. The court further stated that inducement to post infringing links or the running of an illegitimate message board will not require a notice and takedown procedure.
The Plaintiffs, ALIS, a company that engages in protecting movie copyrights in Israel along with the movie producers, filed a lawsuit against the defendants, the operators of the popular “rooter.net” website, which provides various internet message boards.
The plaintiffs claimed that the defendants are infringing their rights, since their “Downloads” and “Movies” message boards contain numerous links to websites containing copyright infringing material.
The court discussed the liability of an intermediate to a copyright infringement, particularly in light of the Israeli Supreme Courts latest decision in Civil Appeal 5977/07, The Hebrew University of Jerusalem v. Shoken Publishing House et al., (“In re Shoken”), discussed in our blog in June, and which adopted the doctrine of copyrights contributory infringement in Israel.
The court first examined whether or not the defendants’ actions constitute a direct infringement, by violating the copyright owners’ exclusive right to make the protected work available to the public. The court determined that creating a link by itself does not “make the protected work available to the public”, since the protected work was already made available to the public by the infringing website to which the link directs to.
The court went on and examined if the defendants’ are contributory liable for the infringement. The court implemented the test for contributory infringement that was set by the Supreme Court in In re Shoken and held that under regular circumstances, a website owner can be liable for copyright infringement if he received notice of the link and did not act to remove it, according to a “notice and takedown procedure”.
The court further held that there are two main exceptions, when the website owner will be held liable for contributory infringement, without considering if he acted according to a notice and takedown procedure.
The first exception is the “inducement exception”. This exception takes place when the website owner actively induces the users to post on his message boards links to copyright infringing material.
The second exception is the “illegitimate message board exception”. This exception does not require an active inducement by the website owner, rather it involves circumstances when the message boards are primarily dedicated to posting links to copyright infringing material.
The court determined that in order to classify a message board as “illegitimate”, it needs to examine to what extent links to copyright infringing material are posted. The court also distinguished between “closed” message boards, where access to the message boards are limited, and “open” message board, where the whole public can participate.
The court set up rules of thumb, according to which, a closed message board that has more than 10 posts, containing links to copyright infringing material will be considered illegitimate. The Court also set that an open message board will be considered illegitimate if half of its content are links to copyright infringing material.
The court determined that the plaintiffs did not provide evidence that the defendants actively induced users to post copyright infringing links. Also, the number of posts containing links to infringing material does not rise up to classifying the message boards as “illegitimate”. Therefore the court dismissed the case and ruled in favor of the defendants.