By EDRi

This article is also available in:
Deutsch: [Deutscher Bundesgerichtshof: Entscheidung im Fall RapidShare | https://www.unwatched.org/EDRigram_10.14_Deutscher_Bundesgerichtshof_Entscheidung_im_Fall_RapidShare?pk_campaign=edri&pk_kwd=20120718]

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?Gericht=bgh&Art=pm&Datum=2012&Sort=3&nr=60931&pos=0&anz=113

Supreme Court: RapidShare Liable For Copyright Infringement – Sometimes
(14.07.2012)
http://torrentfreak.com/supreme-court-rapidshare-liable-for-copyright-infringement-sometimes-120714/

File-hosting firms ‘responsible for pirated content’, German court rules
(16.07.2012)
http://www.zdnet.com/file-hosting-firms-responsible-for-pirated-content-german-court-rules-7000000950/

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-case