Nintendo Defeats Filehoster ‘1Fichier’ at French Supreme Court

Nintendo celebrated victory over French file-hosting service 1fichier.com this week. The French Supreme Court denied the filehoster's appeal and upheld a piracy liability ruling in favor of the gaming company. The ruling confirms that hosting platforms can be held liable if they fail to remove pirated content when asked.

nintendo1fichier.com burst onto the scene around 2009 when file-hosting/sharing platforms were thriving.

In the years that followed, many competitors collapsed under the pressure of copyright complaints, but 1Fichier and French parent company DSTORAGE SAS stood tall.

The file-hosting platform faced its fair share of copyright complaints, including a long-running legal dispute with Nintendo which began in 2018, sparked by 1Fichier’s failure to respond to several takedown notices.

Nintendo sued the file hosting company and won, both in the first instance and on appeal. 1fichier was ordered to pay the gaming giant hundreds of thousands of euros in damages. It refused to go quietly, and eventually took the matter all the way to the French Supreme Court.

Supreme Court Denies 1Fichier’s Appeal
In an order published last week, the Supreme Court (Cour de Cassation), France’s highest court for civil and criminal matters, reviewed the arguments from both parties before upholding the lower court’s judgment.

The battle with Nintendo largely revolved around interpretation of France’s Law on Confidence in the Digital Economy (LCEN), which outlines the responsibilities of online platforms regarding pirated content. A key point of contention was the required level of detail in takedown notices before platforms are obligated to act.

1Fichier argued that Nintendo’s takedown notices were insufficient because they failed to provide information on the persons who originally pirated the content, which may have taken place outside their platform. The company argued that identifying the original pirate (“publisher”/”author”) is a mandatory requirement for a valid takedown notice under French law.

In its ruling, the Supreme Court rejects this interpretation, clarifying that the 1Fichier uploader is considered to be the “author” or “publisher” in this context.

“It follows from these provisions that the concepts of ‘author’ or ‘publisher’ of the disputed information or activities […] must be understood as designating the persons who have stored the illegal data and, therefore, as recipients of the online public communication or storage services,” the ruling reads.

In simple terms, this means that Nintendo doesn’t have to identify the persons who originally published the pirated content (outside 1Fichier). The people who anonymously uploaded the files to the hosting platform are seen as ‘publishers’. That requires the platform to act in response to takedown notices.

Monitoring Obligation?
Another crucial point of contention was 1Fichier’s claim that the lower court ordered the service to remove or block access to infringing content. The company argued that this imposed a general monitoring obligation, which is prohibited under French and European law.

The Supreme Court rejected the argument, ruling that takedown notices merely result in “targeted and temporary surveillance activity.”

“The Court of Appeal was right to hold that the measure ordered, consisting of the removal of the DStorage company’s website ‘1fichier’ or the blocking of access to content constituting copies of the aforementioned video games […], only imposed on this company a targeted surveillance activity on very specific and temporary content.”

In layman terms, the ruling clarifies that while service providers cannot be compelled to proactively monitor all content, they can be required to take specific actions in response to valid takedown notices.

1Fichier

1fichier
After rejecting these and other counterarguments, the Supreme Court dismissed the appeal while ordering 1Fichier to pay the costs. This means that the lower court’s ruling, including the previously ordered damages of hundreds of thousands of euros, also remains intact.

Nintendo Declares Victory
Nintendo says that it’s pleased with the outcome. In a statement shared with Nintendo Everything, it sees the ruling as a victory for the broader games industry.

“Nintendo is pleased with the Court’s finding of liability against DSTORAGE and believes that it is significant not only for Nintendo, but for the entire games industry,” the statement reads.

“It will prevent sharehosters like 1fichier.com from claiming like it did during the proceedings on the merits that a prior decision from a court is needed before pirated content must be taken down, and it confirms the rights that holders have to give notice of when claiming that notified content infringes copyright or trademark rights.”

Interestingly, Nintendo also mentions a ruling released by the Supreme Court earlier this year, where it confirmed that banks can terminate accounts of services that don’t properly address piracy. 1Fichier was also the appealing party in that case.

“[T]he French Supreme Court leaves no doubt that sharehosting providers like 1fichier.com are not a safe haven for storing and sharing illegal content,” Nintendo writes, highlighting the combined effect of these rulings.

Game Over?
While the Supreme Court defeat is yet another setback for 1Fichier and parent company DSTORAGE, the ruling doesn’t necessarily mean the end of the legal battle. In theory, there’s still an appeal option at the highest European Court.

Previously, 1Fichier already indicated that it will take the termination of its account at the French bank Société Générale to the EU authorities for further clarification.

Even if the EU takes the case on, it would likely take years before any decision was handed down. Meanwhile, 1Fichier remains operational and Nintendo will undoubtedly keep a close eye on any pirated files that appear on the site.

1Fichier informed us that they plan to release a statement on the Supreme Court ruling next week, which we will cover then.

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A copy of the translated Supreme Court ruling delivered by President Mrs. Champalaune, sourced by TorrentFreak, is available here (pdf)