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Deutsch: Deutscher Bundesgerichtshof: Entscheidung im Fall RapidShare

A file-hosting site could be partially liable for the content uploaded by others in Germany. In a case brought to court by video games company Atari which accused file-sharing site RapidShare of unlawfully providing access to one of its games, the German Federal Supreme Court decided on 12 July 2012 in favour of the plaintiff.

Despite the fact that, when notified, RapidShare deleted the files in question, Atari was not satisfied and required the inclusion of a filter and other measures to prevent illegal uploading of copyrighted material. The first ruling of the District Court was also in favour of the plaintiff but the Higher Regional Court of Düsseldorf dismissed the action at the appeal, considering that RapidShare had already taken enough measures against copyright infringement and accepting the argument that it was impossible to check all files loaded on the site.

But Atari went further on and appealed to the German Federal Supreme Court (Bundesgerichtshof - BGH), which has now ruled that file-hosting services can be held liable for secondary copyright infringements under certain conditions. BGH said that file-hosters did not generally have to monitor uploads from their users, but that they might have to take measures once they have been notified of a specific infringement issue.

In this case, RapidShare had to take all “technically and economically reasonable precautions” to prevent the uploading of Atari’s game. RapidShare will also have to browse its entire file collection to detect and delete pirated content, and to monitor a “manageable number” of third-party sites that offer link collections of content available on RapidShare to check out whether they are not indexing a copy of Atari game and if so, to delete it from its servers. Failing to carry out these provisions, the service provider would be liable for damages.

The BGH however included a clause that anti-piracy measures had to be within reasonable limits. The case is now back to the Higher Regional Court in Düsseldorf which has to decide what constitutes "reasonable limits".

RapidShare stated it had already “developed a crawling technology that is constantly watching Internet forums, message boards and warez blogs for information about copyright infringement taking place on our system.”

RapidShare attorney Daniel Raimer said for TorrentFreak: “We’re doing more than any provider in the industry to police our site and third-party sites to ensure that legitimate intellectual property rights are protected and that wrongdoers are denied access to our services. Yesterday’s decision was a temporary setback. We remain confident that the Higher Regional Court Düsseldorf will ultimately rule in our favour as it has in the past.”

Press release of the court (only in German, 12.07.2012) http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?G...

Supreme Court: RapidShare Liable For Copyright Infringement – Sometimes (14.07.2012)
http://torrentfreak.com/supreme-court-rapidshare-liable-for-copyright-...

File-hosting firms 'responsible for pirated content', German court rules (16.07.2012)
http://www.zdnet.com/file-hosting-firms-responsible-for-pirated-conten...

German Federal Supreme Court on file hoster responsibility for third party content – “Rapidshare” (13.07.2012)
http://germanitlaw.com/?p=683

EDRi-gram: RapidShare wins another alleged copyright infringement case (12.01.2011)
http://www.edri.org/edrigram/number9.1/rapidshare-infringement-germany...