This is a guest posting by Dr. Andreas Lober and Dr. Jan
Rasmus Ludwig of Schulte-lawyers.com
Court Decision on Rapidshare Copyright Infringement Case Holds
Implications for Online File Hosting Services
In a recently rendered decision the Higher District Court of
Hamburg considered Rapidshare to be liable for copyright
infringements taking place on Rapidshare's servers and thereby
upheld its previous line of decisions. Moreover, the court ruled
that Rapidshare is obliged to take active measures in order to
prevent further copyright infringements after having acquired
notice. The decision was eagerly awaited as European and national
courts lately displayed a more lenient approach regarding the
liability of file hosting service providers.
Rapidshare is a typical file hoster and offers online disk space
free of costs. The service is financed by advertisement and premium
accounts that enable users to run faster and easier downloads. The
content of Rapidshare's servers are not searchable as such.
Thus, third-party websites that contain Rapidshare links and
thereby function as Rapidshare's external index are essential
for effective distribution of pirate copies. Due to the high degree
of anonymity that file hosters generally provide, file hosting is
the ideal platform for the distribution of pirate copies. In the
present case, GEMA (German association representing copyright
interests of composers, lyricists and music publishers) pursued
Rapidshare due to the violation of approximately 4,000 songs.
Interestingly, both parties consider the verdict as a success.
Rapidshare, on the one hand, is eager to point out that even the
Higher District Court Hamburg is now assessing the general business
model of file hosters to be legitimate. In its reasoning the court
particularly referred to increasingly popular cloud-computing
services and held that file hosting is not forbidden as such. The
plaintiff, on the other hand, is highlighting that file hosting
which is actively fostering copyright infringements remains
illegitimate and may be prohibited. In the plaintiff's view
this consequence is remarkable as other German Higher District
Courts lately applied a more lenient approach regarding the
liability of file hosters.
In contrast to previous rulings, the Higher District Court
Hamburg found that a file hosting service is not illegal as such.
Consequently, it could not continue to consider the upload as a
copyright infringement. This change in the court's reasoning is
of utmost significance. Following the new decision, the copyright
violation is only established with the publication of the download
link on one of the essential link lists that functions as an
external index of Rapidshare. In view of this essential importance
of link lists, the Higher District Court Hamburg ruled that
Rapidshare is obliged to closely monitor such external link lists
in order to comply with its obligation to prevent further
infringements after having acquired notice. Thus, Rapidshare has
now an obligation to actively observe the market after having
received the first take-down notice regarding a specific game, film
or music work.
Nevertheless, the ruling is not the final line. Rapidshare may
appeal and thus the German Federal Supreme Court will eventually
decide on the case. However, and this is good news, copyright
owners are at present able to effectively pursue illegitimate file
hosting in Germany. Thus, publisher and other copyright owners are
well advised to tackle file hosters now in order to combat illegal
downloads and copies. In view of the current decision, Germany
appears as an ideal venue to pursue filehosters, as litigation is
comparably quick and cost-effective. This is even more the case as
netload.in, a very popular file hoster offering lots of pirated
games, is based in Germany.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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