(WEB HOST INDUSTRY REVIEW) — The Dusseldorf Higher Regional Court has ruled that a Web host is not responsible for proactively checking user-uploaded content and to remove copyright-infringing material.
German attorney Ulrich Reber from the firm SKW Schwarz Rechtsanwälte (www.skwschwarz.de) summarized the proceedings in an online commentary for International Law Office. Reber explained that a German film distributor filed a preliminary injunction against a Web host to stop the reproduction and dissemination of illegal copies of a film over which he held the exclusive distribution rights. The court, he said, ordered the host to block copyright-protected films on its servers.
The defendant, however, appealed the court’s ruling. The appeals court, in turn, ruled that the liability imposed on the defendant was too extensive and exceeded the defendant’s obligation to respect copyright in the scope of its business. Essentially, the court said that it was too much for the host to proactively check user-uploaded content and to remove copyright-infringing material.
The court described the defendant’s business model as “neutral,” noting that the intention of the defendant’s business model is to provide services for legal uses – and that these services are used legitimately for the most part. Because copyright abusers were so marginal, the court found no need for stricter measures than those already taken by the defendant.
Technology lawyer with Pinsent Masons (www.pinsentmasons.com) Struan Robertson recently wrote an opinion piece for IT and e-commerce legal news site OUT-LAW.COM, noting that one of the founding principles of the Internet age is that service providers should not be liable for the illegal content they host until they’re allerted to it. After that time, the companies have to act quickly to remove it. “Their exemption until that point,” writes Robertson, “is what makes possible many of the services we take for granted.”
He noted at the time that Europe lacked a defining court case on the responsibilities of Web hosts for the actions of their users. He notes that in both Europe and the US, laws stipulate that providers must take material down if they have “actual knowledge” of infringement, but they also must do the same if they have “constructive knowledge,” which is a more complicated concept.
West’s Encyclopedia of American Law, edition 2 defines constructive knowledge as: “That which exists, not in fact, but as a result of the operation of law. That which takes on a character as a consequence of the way it is treated by a rule or policy of law, as opposed to its actual character.”
This means that, for instance, having the key to a safety deposit box is constructive possession of the contents of the box, given that the key gives its owner control over the contents. Applied to Web hosting, this could either mean that a Web host is like a bank and its customers have constructive possession of the contents of their safety deposit box – in this case their files – or the Web host could be responsible for checking that stolen items – copyrighted media – do not find their way onto their premises.
The US found its definition after Viacom sought compensatory damages from Google for alleged copyright infringement by users of its Youtube service for uploading Viacom programs. Judge Louis Stanton threw out the Viacom case, ruling that in this case constructive possession means “knowledge of specific and identifiable infringements of particular individual items,” and that just knowing that such activity is prevalent is not enough evidence that the service provider should proactively monitor or search for infringements.
The Dusseldorf Higher Regional Court’s decision could form the basis for a similar definition of a Web host’s responsibility.
It will, however, have to contend with other rulings such as the September judgement from a Hamburg court that found YouTube liable for damages from the hosting of copyrighted videos without the copyright holder’s permission. YouTube was ordered to block access to these videos, disclose how often its users accessed these streams, and pay damages based on the number of plays. While Google plans to appeal the ruling, if the judgement sticks simply having users check a box saying they have legal rights to the material they’re about to upload does not absolve the service provider of its legal obligations.
This, however, is the outcome wish for by copyright owners. Reber explains the case for making Web hosts responsible for their users’ content.
Writing specifically about the case presented before the Dusseldorf Higher Regional Court, Reber notes that “[t]he 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 percent 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.”
He goes on to note that the Federal Supreme Court had previously ruled that a provider must take precautionary measures in cases of clear infringement to prevent further infringements. And in rejecting the idea that a hosting provider be required to take proactive measures, the Dusseldorf court, he said, failed to take into account other appropriate measures such as using software that automatically searches sites for links to copyright infringing files.
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