Nintendo v. DStorage

Key takeaways

Nintendo had reported to 1fichier.com links allowing several of its games, including Zelda: Breath of the Wild, to be downloaded illegally. The service was slow to act. Found liable at first instance, it lost again before the Paris Court of Appeal on 12 April 2023, which ordered it to pay Nintendo 442,750 euros.

Before the French Court of Cassation, DStorage argued that it was being subjected to general monitoring, which EU law prohibits. The Court disagreed: an obligation to remove or block specific copies for six months is targeted and time-limited monitoring. A host cannot turn a blind eye to content that has been reported to it.

The basis is Article 6 of the French Act on confidence in the digital economy: a host is not liable for the content it stores, unless it has knowledge of it and fails to act promptly to remove it. DStorage argued that a court decision was needed to establish that the files were unlawful. The argument was rejected: a precise notification targeting manifestly infringing copies is enough.

On monitoring, the Court follows the line of the Court of Justice, which has accepted targeted obligations since Glawischnig-Piesczek in 2019. The Digital Services Act has taken up these principles. For publishers, the ruling confirms that a rigorous notification policy is an effective weapon against direct download sites.