1Fichier/Dstorage fighting with Nintendo in Court
They posted this (Google Translate from original french post) on their Facebook page:
Press release following the CA Paris decision of April 12, 2023 NINTENDO vs. DSTORAGE
DStorage offers the 1fichier.com content storage service, mainly focused on the security of data entrusted by its customers.
1fichier.com is not at the origin of any distribution of content to the public, only its users can choose whether or not to communicate their content to the public, and DStorage has no way of knowing it.
Data security implies that DStorage does not grant unsubstantiated withdrawal requests, the facts of which have not been demonstrated, and for which the notifiers do not engage their responsibility, in particular through agreements between the parties.
These agreements are encouraged by the 2000 e-commerce directive governing the liability of hosts for content communicated to the public, and the need to provide guarantees to hosts has been constantly recalled by European authorities ever since.
DStorage was forced to impose this type of rigor and agreements, in order to harmonize the withdrawals of content, faced with the massive and constant influx of erroneous notifications.
The French transposition of the e-commerce directive (LCEN) requires at least to provide, among other things:
“- the description of the disputed facts and their precise location;
- the reasons for which the content must be removed, including the mention of the legal provisions and the justifications of facts;
-a copy of the correspondence addressed to the author or publisher of the contentious information or activities requesting their interruption, withdrawal or modification, or justification that the author or publisher could not be contacted . »The unlawful nature of the content complained of must be obvious to a non-lawyer.
That is to say that there should be no room for doubt, and the diligent host therefore does not have to devote resources1 to verifying the veracity of the allegations. It is also not up to the host to contest the reality of the rights of third parties.In addition, Intellectual Property is never presumed and must necessarily result from an originality that the rightful claimant must demonstrate.
These texts only deal with the case of content communicated to the public. Experts have shown that more than 80% of the content hosted by DStorage is stored for private purposes. It is therefore essential that the notification demonstrates the communication to the public.
For years, the rights holders, accompanied by the public authorities, have cast opprobrium on DStorage and degraded its image. We have obtained numerous court decisions, each of which has its own interpretations of the texts, contradictory, divergent, contrary to the spirit of the law as well as the way in which it was constructed. In this case, how can one claim legal certainty/predictability?
Contrary to the press release issued by Nintendo, it was not argued by DSTORAGE, before the Court of Appeal, that a court decision was a necessary prerequisite for any withdrawal request.
The debate before the Paris Court of Appeal mainly consisted of examining the conformity of the notifications received from Nintendo.
The decision of April 12, 2023 sets out a new vision of things: It cannot "be required of the latter, at the notification stage, that they proceed, as in the context of an action for copyright infringement, to the demonstration of the ownership of their rights, the originality of the games concerned or even the materiality of acts of infringement”.
That is to say that outside the contentious procedure, the notifier does not have to demonstrate the reality of his rights, nor even that the content complained of has been communicated to the public. However, throughout the litigation proceedings, NINTENDO tried to make up for the shortcomings in its notifications, and was only able to demonstrate, as the Court noted, the public nature of only one file out of the hundreds of incriminated files. !
The Court again relied on descriptions arbitrarily affixed by NINTENDO to its lists of links, and considered that the file names2 were sufficiently clear to provide evidence of the infringement. The NINTENDO bailiff's reports demonstrated the absence of certain content on the date of summons, as well as the difficulty for an uninitiated person to find that it was indeed NINTENDO video games.
Concerning the presumed damage, this varied during the procedure, from €6.9m to €1.3m based exclusively on the sole estimate of a NINTENDO employee, an estimate made generally, over a period of time and a range of content different from litigation. However, the compensation can only run from the notification.
Instead of legal action and obtaining the consequent conviction of a simple file host, the Nintendo company would certainly have obtained more results by finding an agreement to fight more effectively against mass counterfeiting.
DStorage will take the case to the Court of Cassation.
Everyone can form an opinion, beyond the press releases of the parties, by consulting the attached decision.
Press release: https://1fichier.com/?3jcaat0ngbk5r2mpt5rb
Some Reddit Post on this: https://www.reddit.com/r/Games/comments/12pjw2u/nintendo_wins_court_battle_against_site_used_to/