Ancora sulla responsabilità degli internet provider per le violazioni copyright dei loro utenti (con un cenno a Twitter v. Taamneh della Corte Suprema USA, 2023)

Approfondita sentenza (segnalata e linkata da Eric Goldman, che va sempre ringraziato) US BANKRUPTCY COURT-SOUTHERN DISTRICT OF NEW YORK, In re: FRONTIER COMMUNICATIONS CORPORATION, et al., Reorganized Debtors, Case No. 20-22476 (MG), del 27 marzo 2024.

Si v. spt. :

-sub III.A, p. 13 ss, “Secondary Liability for Copyright Infringement Is a Well-Established Doctrine”;

– sub III.B “Purpose and Effect of DMCA § 512”, 24 ss.

– sub III.D “Twitter Did Not Silently Rewrite Well-Established Jurisprudence on Secondary Liability for Copyright Infringement” p. 31 ss sul rapporto tra la disciplina delle violazioni copyright e la importante sentenza della Corte Suprema Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023).

Di quest’ultima riporto due passaggi dal Syllabus iniziale:

– la causa petendi degli attori contro Twitter (e Facebook e Google):

<< Plaintiffs allege that defendants aided and abetted ISIS in the
following ways: First, they provided social-media platforms, which are
generally available to the internet-using public; ISIS was able to up-
load content to those platforms and connect with third parties on them.
Second, defendants’ recommendation algorithms matched ISIS-re-
lated content to users most likely to be interested in that content. And,
third, defendants knew that ISIS was uploading this content but took
insufficient steps to ensure that its content was removed. Plaintiffs do
not allege that ISIS or Masharipov used defendants’ platforms to plan
or coordinate the Reina attack. Nor do plaintiffs allege that defend-
ants gave ISIS any special treatment or words of encouragement. Nor
is there reason to think that defendants carefully screened any content
before allowing users to upload it onto their platforms>>

– La risposta della SCOTUS:

<<None of plaintiffs’ allegations suggest that defendants culpably “associate[d themselves] with” the Reina attack, “participate[d] in it as
something that [they] wishe[d] to bring about,” or sought “by [their]
action to make it succeed.” Nye & Nissen, 336 U. S., at 619 (internal
quotation marks omitted). Defendants’ mere creation of their media
platforms is no more culpable than the creation of email, cell phones,
or the internet generally. And defendants’ recommendation algorithms are merely part of the infrastructure through which all the content on their platforms is filtered. Moreover, the algorithms have been presented as agnostic as to the nature of the content. At bottom, the allegations here rest less on affirmative misconduct and more on passive nonfeasance. To impose aiding-and-abetting liability for passive nonfeasance, plaintiffs must make a strong showing of assistance and scienter.     Plaintiffs fail to do so.
First, the relationship between defendants and the Reina attack is
highly attenuated. Plaintiffs make no allegations that defendants’ relationship with ISIS was significantly different from their arm’s
length, passive, and largely indifferent relationship with most users.
And their relationship with the Reina attack is even further removed,
given the lack of allegations connecting the Reina attack with ISIS’ use
of these platforms. Second, plaintiffs provide no reason to think that
defendants were consciously trying to help or otherwise participate in
the Reina attack, and they point to no actions that would normally
support an aiding-and-abetting claim.
Plaintiffs’ complaint rests heavily on defendants’ failure to act; yet
plaintiffs identify no duty that would require defendants or other communication-providing services to terminate customers after discovering that the customers were using the service for illicit ends. Even if
such a duty existed in this case, it would not transform defendants’
distant inaction into knowing and substantial assistance that could
establish aiding and abetting the Reina attack. And the expansive
scope of plaintiffs’ claims would necessarily hold defendants liable as
having aided and abetted each and every ISIS terrorist act committed
anywhere in the world. The allegations plaintiffs make here are not
the type of pervasive, systemic, and culpable assistance to a series of
terrorist activities that could be described as aiding and abetting each
terrorist act by ISIS.
In this case, the failure to allege that the platforms here do more
than transmit information by billions of people—most of whom use the
platforms for interactions that once took place via mail, on the phone,
or in public areas—is insufficient to state a claim that defendants
knowingly gave substantial assistance and thereby aided and abetted
ISIS’ acts. A contrary conclusion would effectively hold any sort of
communications provider liable for any sort of wrongdoing merely for
knowing that the wrongdoers were using its services and failing to stop
them. That would run roughshod over the typical limits on tort liability and unmoor aiding and abetting from culpability>>.

La norma asseritamente violata dalle piattaforme era il 18 U.S. Code § 2333 (d) (2), secondo cui : <<2) Liability.— In an action under subsection (a) for an injury arising from an act of international terrorism committed, planned, or authorized by an organization that had been designated as a foreign terrorist organization under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189), as of the date on which such act of international terrorism was committed, planned, or authorized, liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism>>.

Corresponsabilità di Amazon per il danno da prodotto pericoloso venduto tramite il suo marketplace

Eric Goldman dà notizia di interessante sentenza che afferma la corresponsabilità in oggetto.

Il prodotto era una fotocamera di dimensioni minime che poteva essere nascosta ad es. dentro un tubo portaasciugamasni. Permetteva quindi la violazione della privacy tramite cattura di immagini delle persone in condizioni di nudità o comunque intime.

Il concorso è basato sul fatto che non aveva rilevato questo aspetto ed anzi aveva pubblicizzato l’uso nascosto cioè non  visibile alle persone presenti nella stanza.

Si tratta di Distr. sud della West Virginia CIVIL ACTION NO. 3:23-cv-0046 del 30.11.2023, M.S. c. Amazon.

<<These cases represent variations of the same theme: when a seller promotes a product suggesting a particular use, harms that result from that suggested use are foreseeable. Here, M.S. alleges Amazon approved product descriptions suggesting consumers use John Doe’s camera to record private moments in a bathroom. Amazon cannot claim shock when a consumer does just that. See King v. Kayak Mfg. Corp., 387 S.E.2d 511, 522–23 (W. Va. 1989) (recognizing a defendant’s “advertising or promotional material concerning the uses of the product are a part of [the] reasonable use[s] of the product”) (citing sources)>>

La domanda: <<The thrust of M.S.’s complaint is simple: Wells bought a hidden camera from and used it exactly as advertised. See, e.g., Am. Compl. ¶ 22. The causal chain is short. Amazon approved and helped market John Doe’s camera. See id. ¶¶ 8, 18, 21, 24, 26.
Amazon knew the camera’s product description suggested using the camera as a towel hook in the bathroom. See id. ¶¶ 8, 21. Amazon cannot claim surprise when a consumer uses the camera that way. See supra Part I.A. A retailer can expect consumers to use products as advertised. See King, 387 S.E.2d at 522 (citing cases); Livingston v. Isuzu Motors, Ltd., 910 F. Supp. 1473, 1496 (D. Mont. 1995) (“Courts have held that a manufacturer’s advertisements indicate a use of the product a manufacturer was able to foresee.”)>>

<<M.S.’s theory of liability is not like this sprawling opioid litigation. This is not a case of “numerous independent actions by multiple actors.” In re Opioid Litig., 2023 W.V. Cir. LEXIS 3
at *24. The crux of M.S.’s complaint is Amazon worked closely with John Doe to inspect, market, and distribute John Doe’s camera. See Am. Compl. ¶¶ 8–9, 13, 18, 20, 23, 26. A consumer then used John Doe’s product as advertised and the advertised use harmed M.S. See id.
¶ 29. Yes, Amazon did not install the camera in M.S.’s private bathroom or surreptitiously record her. See Defs.’ Mem. at 6. Wells did. See Am. Compl. ¶¶ 29–30. But Wells’ use of the camera was foreseeable, see supra Part I.A, and not “too remote” from Amazon’s alleged conduct, In re Opioid Litig., 2023 W.V. Cir. LEXIS 3 at *24. As such, the Court finds the risk of harm stemming from third parties is not “slight” but expected. Miller, 455 S.E.2d at 825.

Accordingly, the Court finds M.S. properly alleges proximate causation>>