October 14 2010
On April 27 2010 the Dusseldorf Higher Regional Court ruled on the liability of web hosting providers under German copyright law in a decision which has attracted considerable attention in the media sector.
The plaintiff, a German film distributor, had filed for a preliminary injunction against a provider of web hosting services to stop the reproduction and dissemination of illegal copies of a film for which the plaintiff held the exclusive distribution rights. The Dusseldorf District Court confirmed the preliminary injunction, ordering the defendant to block copyright-protected films on its servers. The defendant appealed.
Appeal court decision
The Dusseldorf Higher Regional Court held that the liability imposed on the defendant for the infringements claimed by the plaintiff was too extensive and clearly exceeded the defendant's obligation to respect copyright in the scope of its business, as it compelled the defendant proactively to check the content that users uploaded to its servers and to remove material that infringed copyright.
The court noted that the defendant's business model aimed to provide web space for legal uses, and that such capacity was, for the most part, used legitimately - the abuse of copyright was only marginal. Therefore, the court found no need for stricter measures than those already taken by the defendant. It expressly stated that the hosting services provider was not obliged to take proactive measures.
The court dismissed the plaintiff's demand for the use of a word filter to identify infringing materials, with filtered material to be checked manually, or for the application of other equally effective measures. The proposed measures were rejected as unreasonable and impractical; the court found that they exceeded the defendant's liability under German copyright law, as the defendant was not regarded as an offender or accomplice in the copyright infringement committed by users. As the users, rather than the defendant, had made the infringing material publicly available, the defendant's liability was strictly limited and could justify only such reasonable measures as the defendant had already taken. The measures proposed by the plaintiff (eg, word filters) would prevent the storage of legal private copies and were considered inappropriate and arbitrary, as the defendant could not know beforehand whether the files thus identified contained infringing material.
The court's decision was largely welcomed by file sharers, but met with widespread disapproval among copyright owners.
The decision is wrong in various respects. The defendant's business model unquestionably allows for unfiltered and widespread infringements of copyright, as the defendant admitted that it did not check or control the content of uploaded files. In a previous case against the same hosting provider, the Hamburg Higher District Court stated that between 5% and 6% of the hosted files contained material that infringed copyright. Thus, the Dusseldorf Higher Regional Court's description of the defendant's business model as "neutral" is unrealistic and inappropriate.
In light of this, the decision that the host provider cannot be required to apply filter technology of any kind, even in the most obvious cases, is incomprehensible - the measures proposed by the plaintiff are easy to apply and are in accordance with measures confirmed by the Federal Supreme Court. Although the Federal Supreme Court has ruled that in cases of clear infringement, a provider is bound to take precautionary measures in order to prevent further infringements, the Dusseldorf Higher Regional Court failed to apply the ruling. In rejecting the idea that a hosting provider be required to take proactive measures, it argued that the effort required would be unreasonable, but failed to explain the point. It also neglected to discuss other appropriate measures, such as the use of software which automatically searches third-party 'leeching sites' that contain links to the infringing files hosted on a web host's servers. It dismissed the plaintiff's demand for the deletion of files containing the full title of the copyright-protected film and an indication of the file's illicit origins, such as the term 'DVDRip', arguing that the defendant could not be sure that such a link necessarily led to a protected film.
Furthermore, the court maintained that the defendant could not be compelled to delete links on a third party's website. This finding is perhaps the most incomprehensible of all, as the plaintiff had merely suggested that links on third-party websites could be used to identify infringing files. Disappointingly for media rights owners, the court failed to consider a combination of effective and feasible measures, thus missing an opportunity to reach a reasonable reconciliation of interests between copyright owners and hosting providers. An appeal against a similar decision involving the same defendant is pending before the Federal Supreme Court.
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