Germany, French courts disagree on responsibility of ISPs for illegal content

In Germany file hosters are partially liable for the files they host

Courts in France and Germany differ about the way ISPs and online file-hosting services should deal with take-down requests, with Germany putting more responsibility on service providers to police content.

While the German Federal Court of Justice said that online storage services should look for similar infringing content when notified that they host one infringing file, the French Final Court of Appeal ruled that copyright holders should file an objection for each disputed upload.

The German Federal Court of Justice ruled on Thursday in a copyright case involving Atari and Rapidshare over the game "Alone in the Dark." Atari notified Rapidshare in 2008 that an illegal version of the game was shared via the service. Rapidshare deleted the data after it was informed of the infringement, but neglected to check whether the game was stored on its servers by other users, the court said in a news release.

Rapidshare should have done what is "technically and economically reasonable" to prevent other users from offering the game through the service to third parties, said the court, adding that Rapidshare had possibly violated this duty.

The Federal Court referred the case back to the Court of Appeal, a lower court, to determine what reasonable measures Rapidshare could take to prevent further copyright violations related to the Atari game. The Court of Appeal had previously heard the case, ruling that Rapdishare was not guilty of neglect. The Federal Court, however, said the Appeal Court needs to determine what the precise responsibility of service providers like Rapidshare is.

It is not enough if a file-hosting service deletes one file when notified of copyright infringement; the service should do more to make sure it does not host similar infringing content, the court ruled, said Dietlind Weinland, spokeswoman of the German Federal Court of Justice on Monday.

In principle, Rapidshare should have checked its servers for more illegal "Alone in the Dark" games, the Federal Court said. However, the court did not specify exactly how Rapidshare should have done that, said Weinland, adding that there are many ways in which it is technically possible to do so.

The Appeal Court needs to determine the extent to which Rapidshare is responsible for taking steps to prevent copyright violation, Weinland said. The Federal Court did determine that any solution has to be reasonable for Rapidshare, she said, adding that a word or sentence filter could be one of the options.

In a similar case between German copyright organization Gema and Rapidshare over illegally shared music last May, the Higher Regional Court in Hamburg ruled that Rapidshare is not obliged to continuously scan uploads for infringing works. It did rule however that Rapidshare should actively monitor links from external sites to the files it hosts, and in that way spot illegal files and take them down.

Rapidshare has an anti-abuse team that identifies illegal files, which are immediately blocked when spotted, CEO Alexandra Zwingli said at the time, adding that she planned to appeal the Hamburg verdict nevertheless because file hosters should not be obliged to police their systems. It is beneficial for file hosting services to voluntarily check for infringing content, but it should not become law to do so, she said.

Rapidshare did not respond to a request for comment on Monday.

While the German courts reached the conclusion that file hosters like Rapidshare could at least partially be held liable for hosting infringing content on their servers, a French court seemed to reach a completely opposite conclusion last week.

The French Final Court of Appeal ruled Thursday that two "take-down, stay-down" orders made by lower court judges conflicted with the European Union's 2000 E-Commerce Directive and with the French 2004 law on Confidence in the Digital Economy.

By ordering ISPs to remove content at the request of the copyright holder, and then to block all future attempts to upload that content without further notice, the judges were in effect forcing the ISPs to filter all content as a matter of routine, something expressly forbidden by the directive and the law, according to the French Association of Internet Community Services (ASIC).

The appeals court, in overturning the lower courts' rulings, is effectively ruling that copyright holders must look out for and notify violations of their content themselves, and cannot expect ISPs to do it for them.

It is difficult to determine when an ISP has actual knowledge that there is illegal content on its servers and it is also difficult to determine when a file hosting service is able to act and how it should act, said Maelle Lelardic, policy manager at EuroISPA, the pan-European association of ISPs. This is one reason why there are so many related lawsuits in Europe at the moment. Certainly when it comes to hosting, hosters are not allowed to monitor their customers' data, she said.

Looking at services like Rapidshare, Google or eBay, Lelardic said that notice-and-takedown forms, which let copyright holders identify files that violate copyrights and tell service providers about them, "work very well." Services like eBay gladly provide such forms to remove advertising for fake Louis Vuitton goods for instance, she said.

The European Commission is also aware that it is not easy to determine what measures are reasonable for the removal of illegal content. That is why it launched a public consultation on procedures for notifying and acting on illegal content hosted by online intermediaries. The Commission wants to know if the industry thinks that all hosting service providers should put in place easy-to-use mechanisms that allow for the notification of illegal content, and if so, whether such measures should be the exclusive means of flagging content.

"The consultation also covers the issue of acting on illegal content: for instance, should hosting service providers consult the providers of alleged illegal content? Should they provide feedback to notice providers?" the Commission said on the consultation website. Stakeholders can contribute to the consultation until Sept. 3.

Peter Sayer contributed reporting.

Loek covers all things tech for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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