She is ordered to pay 20000 euros damages

A judgment of the TGI de Troyes dated June 4, 2008 (1) just provide answer on the liability of technical intermediaries. The eBay platform, which allows professionals or private individuals to buy or sell goods or services, online was assigned patent infringement by the Hermes company for products offered for sale by its users. However, eBay carrying a brokerage electronic auctions is considered to be a third party to the transaction because its intervention was limited to the accommodation of announcements. The question of the liability regime should thus be specified. To do this, the tribunal had to legally characterize the platform: is it hosting provider or Publisher

EBay hosting quality poses no difficulties because it is a neutral technical intermediary providing for the availability of the public by online communication services, storage of signals, writings, images, sounds or messages of any nature provided by the recipients of these services. The tribunal rejects first characterization of content editor. Indeed, the Publisher determines the content, he chose while here are users that define. In addition, the architecture of the site is not an editorial choice but technical constraints to win in clarity and readability. Finally, the test for benefit as to the operation of hosted ads is inoperative, its acceptance would add a condition to the application of the Act.

Operating rules

EBay qualified online services editor since he receives compensation for technical services available to users to offer goods for sale. These technical means and participate in the auction service architecture and creating operating rules.

Accordingly, the tribunal considers that eBay is both content host and editor of online services. The publishers of online services must ensure that their site is not used for improper purposes, according to a double obligation of means: the implementation of technical measures for prevention and research of illegal content; and the provision of a "full and perfect" information on the use of their service, separate from the General conditions of use.

In this case, if eBay has put in place of such technical means, they are inoperative to ingenuity developed by users for work around them. Similarly, information to users about the products for sale is not provided in a manner sufficient. Therefore, the tribunal considers that eBay has not fulfilled its obligation to ensure the absence of improper use of the service by users. As a result, it initiated its responsibility for the Hermès company within the meaning of the provisions of the Code of intellectual property against infringement. She is ordered to pay 20,000 euros damages.

Obligations of the Publisher

The solution adopted by this judgment has the advantage of specify shared content is editorial responsibility regime. Thus, services editor will be liable by any breach of obligations of vigilance and information. However, this obligation is of medium, the editor can escape from the third party of its responsibility by demonstrating that it has everything implemented to fulfill its obligations and to prevent the dissemination of illegal content.

This decision follows the recommendations of the report of information on the application of the LCEN, which sets out "between the responsible host of nothing and the editor responsible for all, must be a status of online sales site manager where these managers agree to be responsible not of delinquency, including infringement that can express themselves on their site, but a device to fight it and to prevent it".