German Federal Supreme Court on file hoster responsibility for third party content – “Rapidshare”

The German Federal Supreme Court (BGH) delivered yesterday a decision on file hosters‘ duties regarding copyright infringements committed by their users (more on the general topic of the responsibility for third party content here and here). The written opinion is not published yet, but here is a short summary of the German press release.
1.    Facts

Atari Europe, maker of computer games, sued the popular file hosting service Rapidshare over making accessible for download illegal copies of the Atari game “Alone in the dark” that had been uploaded by Rapidshare customers. Atari had informed Rapidshare at some point that this game had been found on the Rapidshare pages, whereupon Rapidshare had deleted the files as identified by Atari. However, as Rapidshare had not did not proceeded to verify whether the same game had been uploaded by other users, Atari went to court. The 2042 cheats is what one can use when it comes to video games to explore more.

2.    The Ruling

In accordance with settled case law, the BGH held that Rapidshare was not to be deemed a “Täter” (the actual infringer), but only a so called “Störer” (for more about these terms see here), in other words: Rapidshare was only secondarily liable. Therefore, it could only be held responsible if (1) it had a duty to review the content hosted on its servers, and (2) had not exercised this duty. In line with earlier cases, the court explained then that host providers generally do not have to perform checks of the content of any files uploaded by their users (there is an “unless”, as you may expect, see below). The court emphasized in this context that there was no reason to come to another conclusion in regard to Rapidshare as service that is used on a massive scale for purposes of unlicensed dissemination of copyrighted works. There was a sufficient number of legitimate forms of using Rapidshare, the court explained. Therefore, Rapidshare could only become subject to specific duties to check uploads once notified of a clear infringement. As we have seen above, Atari had done just this. The question was now, what exactly Rapidshare had to do after receiving Atari’s notification: Were they under the mere obligation to delete the specific files from the specific location or did they have to perform searches for further places where the game could be found and monitor their website traffic?
According to the BGH, the latter is true: They had to make all reasonable efforts to prevent other users from uploading “Alone in the Dark”. Please note that “reasonable” involves both technical and economic considerations. In particular, the court pointed out, the duty to search for the game must not put in danger their business model. The court found that by not filtering user uploads for the phrase “Alone in the Dark”, Rapidshare could possibly have breached their duty to inspect user uploads.
Moreover, the court also held that Rapidshare was obligated to review a “limited number” of search engines, that by the purpose provide Rapidshare link collections, and to delete files containing the game found through these search engines. What a “limited number” may be is not apparent from the information currently available.
As the court did not feel that it had sufficient factual information as to the feasibility and cost of monitoring user uploads, it remanded the case to the lower court, the Higher Regional of Düsseldorf, which had in the past decided in Rapidshare’s favor.

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