[x-pubpol] France: Radioblog condemned to damages for over €1 million

[Joly MacFie]

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France: Radioblog condemned to damages for over €1
million<http://feedproxy.google.com/~r/KluwerCopyrightBlogFull/~3/hz2YNxBCsic/?utm_source=feedburner&utm_medium=email>

Posted: 13 Nov 2012 02:29 AM PST
 *by Brad Spitz *

The French Supreme Court (“Cour de Cassation”) has upheld, in a ruling of 25
September 2012<http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000026485372&fastReqId=78120396&fastPos=1>,
a judgment of the Court of Appeal of Paris condemning Radioblog and its
managing directors to the payment of damages amounting to over €1 million,
in addition to a suspended prison sentence of nine months and a €10,000
fine.

The case is interesting for two reasons: the gigantic amount of damages and
the application, for the first time, of new provisions of the French
Intellectual Property Code condemning the provision of software
applications intended to be used for infringing copyright.

The facts are the following: the website Radioblog provided a software
called ‘RadioBlogClub’ to Internet users that enabled them to create a
music player on an Internet page and to broadcast musical files in the form
of playlists accessible to anyone (via streaming). This system did not
however allow the Internet users to download the musical files. Moreover,
the device enabled the Internet users to research music by title or by
artist from a database available on the website radioblog.fr.

*Software manifestly intended to communicate unauthorised works to the
public*

The Court of Appeal of Paris, in its decision dated 22 March
2011<http://www.legalis.net/spip.php?page=jurisprudence-decision&id_article=3136>,
condemned Radioblog and its managing directors, not only (very classically)
for communicating protected recordings to the public in violation of Article
L. 335-4<http://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=AFE4E28D2479D3B205148015D5CA92CC.tpdjo05v_2?idArticle=LEGIARTI000006279182&cidTexte=LEGITEXT000006069414&dateTexte=20121111>of
the Intellectual Property Code, but also on the grounds of Article
L. 335-2-1<http://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=28BF98F2DDA69508902038F43958ED2C.tpdjo05v_2?idArticle=LEGIARTI000006279235&cidTexte=LEGITEXT000006069414&dateTexte=20121111>of
the same code, which punishes anyone who “publishes, makes available
or
communicates to the public, knowingly and in any form whatsoever, software
manifestly intended to communicate unauthorised works or protected objects
to the public” with up to 3 years imprisonment and a fine of up to €300,000.

The Supreme Court upholds the ruling of the Court of Appeal Paris, which
had considered that these provisions were applicable in this case, since
the website offered to Internet users the possibility of listening to
recordings, most of which were protected by intellectual property” and
since “the accused, who are professionals in a very specialised field,
could not ignore the obligation to ensure compliance with the rights of the
right owners, before allowing the public to broadcast the works”.

*Punitive damages*

The ruling of the French Supreme Court is also very interesting in that it
upholds the judgement of the Court of Appeal, which awarded over €1 million
in damages to the two unions representing French record producers, which
took action against Radioblog (SCPP <http://www.scpp.fr/SCPP/>and
SPPF<http://www.sppf.com/>).
This amount of damages is based on the amount of profits that were made by
the websites through publicity. The Court of Appeal based its decision on
paragraph 1 of Article L.
331-1-3<http://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=28BF98F2DDA69508902038F43958ED2C.tpdjo05v_2?idArticle=LEGIARTI000006279274&cidTexte=LEGITEXT000006069414&dateTexte=20121111>of
the Intellectual Property Code which provides that “To award damages,
the court takes into account the negative economic consequences, including
lost profits suffered by the injured party, the profits made by the
infringer and the moral prejudice caused to the holder of these rights
because of the infringement”.

The *Cour de Cassation* upheld the Court of Appeal’s judgment, ruling that
the assessment of damages is left to the discretion of the lower courts.
This is however questionable. Even though the Supreme Court is not the
judge of the facts, the way in which the Court of Appeal of Paris assessed
the prejudice of the plaintiffs should be considered as breaching the law,
since the French judges are not supposed to indemnify beyond the actual
prejudice. Indeed, the Court of Appeal did not define the prejudice
actually suffered by the plaintiffs. The two French above-mentioned unions
certainly do not represent the entire musical production, as well as the
authors, publishers, performing artists, etc. In a way, the Court of Appeal
of Paris applied serious punitive damages (see *Axel Saint Martin,
Radioblog – Peine privée pour contrefaçon, RLDI 2009, 53*), and the Supreme
Court approved the Court of Appeal in the negative, by simply ruling that
it is not the judge of the facts.
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