Decision of April 26, 2023 registering the "uptobox" service on the list mentioned in I of article L.331-25 of the French intellectual property code

The French regulatory authority for audiovisual and digital communication,

Having regard to the French intellectual property code, in particular articles L.331-12, L.331-25 and R.331-18;

Having regard to the law of 30 September 1986, in particular article 42-7 ;

Having regard to law n°2004-575 of June 21, 2004 for confidence in the digital economy, in particular article 6, III, I and article 19;

Having regard to the e-mail of December 5, 2022 by which the rapporteur mentioned in article 42-7 of the law of September 30, 1986 notified the "uptobox" service of the letter of November 29, 2022 informing it of the initiation, on September 14, 2022, of the proceedings prior to its inclusion on the list mentioned in I of article L.331-25 of the French intellectual property code, forwarded to it the statement of offence drawn up on October 7, 2022 by the sworn and authorized agents of Arcom, and invited it to present its observations within one month;

Having regard to the report of February 6, 2023 drawn up by the rapporteur concluding that the elements gathered justify the inclusion of the "uptobox" service on the list mentioned in I of article L.331-25 of the French intellectual property code, which was sent to the Chairman of the Authority by letter of February 7, 2023;

In view of the letter dated March 27, 2023 by which the Chairman of the Authority summoned the "uptobox" service to a public meeting on April 19, 2023 at 11:30 a.m. at the Authority's headquarters in order to give it the opportunity to submit its observations and produce any supporting evidence;

At the meeting on April 19, 2023, the Authority heard the rapporteur, and the "uptobox" service did not appear or was not represented.

Considering the following:

On the legal manager

1. On the one hand, under the provisions of article L.331-25 I of the French intellectual property code, "as part of the mission mentioned in 1° of article L.331-12, the French regulatory authority for audiovisual and digital communication may publish a list of the names and actions of those online public communication services which have been the subject of a deliberation in the course of which it has been found that these services seriously and repeatedly infringe copyright or neighboring rights".

2. On the other hand, under the provisions of article L.331-25 II of the French intellectual property code: "The investigation proceedings prior to inclusion on the list mentioned in I of this article are carried out by the rapporteur mentioned in article 42-7 of law no. 86-1067 of September 30, 1986 on freedom of communication, or by one of his deputies.

The authorized and sworn agents mentioned in III of article L. 331-14 of the present code are qualified to proceed, at the rapporteur's request, with the investigation and establishment of an infringement of royalties or neighbour rights.

These agents, who have the investigative powers granted to the authority by article 19 of the aforementioned law no. 86-1067 of September 30, 1986, may take into account any useful element and request from copyright or neighbor rights holders any information relating to:

1° The operating authorizations that the said holders have granted to online public communication services;

2° Notifications they have sent to online public communication services, or other information making it possible to ascertain the unlawful use of protected works or objects on these services;

3° Findings made by the authorized and sworn agents mentioned in article L. 331-2 of the present code.

The agents' findings are recorded in statements of offence, which are communicated to the rapporteur. If the rapporteur considers that the evidence gathered justifies inclusion on the list referred to in I of the present article, he or she forwards the file to the chairman of the authority."

On the serious and repeated breaches of royalties committed by the "uptobox" service

3. According to the official report of offence drawn up on October 7, 2022, the "uptobox" service and its extension "uptostream" provide a free online downloading or reading supply for films, books, video games, music and series. In this manager, they host and offer free of charge, in particular, cinematographic works still in theaters or distributed exclusively on legal platforms (in particular, with effect from October 5, 2022, the films Les Minions 2 : Il était une fois Gru ; La nuit du 12 and, with effect from October 3, 2022, the films Beast ; Everything Everywhere All at Once ; Bullet Train ; Athena ; Trois Mille ans à t'attendre ; Nope ; Thor: Love And Thunder ; Pinocchio (Disney) ; The Greatest Beer Run Ever ; Rainbow Sacrifice ; Hocus Pocus 2 ; My Best Friend's Exorcism ; Avec amour et acharnement ; Blonde ; Krypto et les Super-Animaux ; Lou ; A Jazzman's Blues ; Le Parfumeur ; Ne dis rien).

4. The same statement of offence shows that, at the request of the rights holders of the works listed, this service has been the subject of numerous URL deletions from the search results of a given search engine, attesting to the fact that it offers a large number of protected contents without the authorization of the rights holders. According to the same search engine, between March 5, 2012 and October 5, 2022, on the one hand, concerning the "uptobox" site, 9,861,163 URLs out of 228,821 individual requests were the subject of a request to be removed from the search results, with 43% of these URLs effectively removed from the results, while 55% did not appear in the index, on the other hand, concerning its "uptostream" extension, 3,065,852 URLs out of 72,353 individual requests were the subject of a request for removal from search results, 35% of these URLs having been effectively removed from these results while the others did not appear in the index.

5. The "uptobox" and "uptostream" sites also feature on the "Counterfeit and Piracy Watchlist" of illegal services drawn up by the European Commission on December 14, 2020.

In addition, the downloading links of the "uptobox" service are listed on several other sites likely to be qualified as illegal services, or for which certain extensions have been deemed illegal by the judicial authorities (in a verdict handed down by the Paris Court of First Instance on September 23, 2021, RG 21/08733, concerning the "extreme-down" service, and by a verdict of the same court of March 12, 2020, RG 19/15014, concerning the "cpasmieux" service, followed by decisions to update other domain names associated with these services).

6. Lastly, the "uptobox" service does not abide by the identification requirements laid down in article 19 of French law no. 2004-575 of June 21, 2004 on confidence in the digital economy, which requires public mention of the name and address of the service's legal representative.

7. It is clear from all of the above that the "uptobox" service has committed serious and repeated breaches of copyright, justifying its inclusion on the list mentioned in I of article L.331-25 of the French intellectual property code, published on the Authority's website; the serious and repeated nature of these breaches justifies this inclusion for a period of twelve months.

After deliberation,

Decides :

Art. 1. - The "uptobox" service has been included for a period of twelve months on the list mentioned in I of article L.331-25 of the French intellectual property code, which will be published on the Authority's website.

Art. 2 - The present decision will be notified to the "uptobox" service electronically and published on the Authority's website, in accordance with IV of article L.331-25 of the French intellectual property code.

Deliberated on April 26, 2023 by Mr. Denis Rapone, presiding member, Mr. Antoine Boilley, Ms. Bénédicte Lesage, Mr. Hervé Godechot, Mr. Benoit Loutrel, Ms. Juliette Théry, Ms. Anne Grand d'Esnon and Ms. Laurence Pécaut-Rivolier, members.

Signed in Paris,

April 26, 2023

For the French regulatory authority for audiovisual and digital communication

Councillor,

D. RAPONE