Germany Says P2P Company Must Proactively Monitor Content For Infringement

from the a-little-understanding-please? dept

Wed, Oct 1st 2008 12:49pm — Mike Masnick

Another day, another awful legal ruling about file sharing. This time, coming out of Germany. A German court has told file hosting company Rapid Share that it needs to proactively screen and monitor all content hosted on its site and remove any infringing files. The company already uses a hash method to screen out infringing files its been alerted to and employs six people who monitor for infringement, but the court has said that's not enough. Specifically, it notes (correctly) that an uploader need only change a file slightly to avoid the hash filter -- but then somehow makes the leap to suggesting that this becomes Rapid Share's liability. It's yet another case where judges seem to not understand where liability should lie. It should be common sense that liability lies with the user who's doing the actual infringing, rather than the platform provider -- but it seems to get mixed up way too often. Of course, in the grand scheme of things, this will have almost no impact as people will simply migrate to other sites instead.

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Filed Under: copyright, file sharing, germany, liability, monitoring
Companies: rapid share

20 Comments

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Killer_Tofu (profile), 1 Oct 2008 @ 1:22pm

This judge
The judge needs to be removed from their position.
They obviously have no idea of what personal responsibility means. People should be responsible for their own actions. That is why we have something like section 230.
People need to stop blaming others for their own failures or for breaking the law.
Kids blaming GTA, TOO BAD, punish the kid who was too uneducated to know the difference.
Platform providers, innocent, as they are not the ones commiting the crime. Their platforms are meant for legitimate purposes, or at least can be used for legitimate purposes, even if they knew it could be used for other stuff. Car makers still make cars even though crooks use them to evade being caught.

I can say I never intend on visiting Germany with so many horrible recent rulings. None of my tourist money will ever support such stupidity.
*/rant*
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Michael Foord, 1 Oct 2008 @ 1:31pm

Rapidshare is no angel
The site really is a haven for pirate and dubious material. It is fairly apparent that they *aren't* doing enough.
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Anonymous Coward, 1 Oct 2008 @ 1:34pm

Why? Does the P2P get paid to be the COP?
What give the right to P2P to violate my privacy?
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chris (profile), 1 Oct 2008 @ 1:38pm

quit mincing around and shut it down
that's what the *AA's of the world want. just shut it down and let the users defect to multiple services. spread the blame around making it harder for *AA's to monitor and police them.
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moe, 1 Oct 2008 @ 1:46pm

Re: Privacy?
Just curious, but how are they violating your privacy? After all, if you put the file on an open site then you're not exactly doing much to protect your privacy.
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matt, 1 Oct 2008 @ 1:51pm

Re: Rapidshare is no angel
why are you promoting a crappy and illegitimate attempt at a port of python, with a book made by yourself? Yes, let's all use .net and mono. Suuuure, right. As if anyone will fall for that again.

Additionally, why is rapidshare responsible? Under the DMCA and grokster and everything, they are not encouraging piracy. There is no inducement. They don't say "hey, please share". Blaming them, as techdirt clearly states, is not the way to go.

This would be like blaming ironpython for the problems with .net. Is it really their fault? Should they be sued for antitrust? I doubt it.
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discojohnson, 1 Oct 2008 @ 2:22pm

reason why the ruling was what it was
if they weren't policing it already themselves, then they would be exempt. however, by establishing that they will monitor it themselves, they are no longer exempt.. at least that's the US version, IIRC. moral of the story: don't monitor for infringing material, only spam.
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mike allen, 1 Oct 2008 @ 2:34pm

The judge is within German law
First Germany has no DMCA therefore NO SAFE HARBOR no section 230 and can order the P2P site or ISPs to do what ever he likes. The same applies for most of Europe including the UK.
That said it is however wrong to blame the P2P service when he should be going after the uploader's. but then even germany dont have enough jails for tne number of file sharers.
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discojohnson, 1 Oct 2008 @ 2:44pm

Re: The judge is within German law
i think that i didn't clearly make my point. remove the DCMA from the picture entirely. they were already proactively monitoring the files, but it was decided that they didn't do enough. had they not been doing it at all, they could have used other examples (piratebay) to argue that they can't control the files people put on the system, just that they're a platform. again, i believe they lost because they were already trying to monitor files which was probably not their responsibility to do in the first place.
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steveballmer, 1 Oct 2008 @ 4:33pm

No problem!
You guys can just sub-contract this to Microsoft!
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Bill, 1 Oct 2008 @ 9:18pm

RS-vs-PB
PB and RS have two very different business models. PB doesn't host any infringing content. It's Google with attitude. RS hosts the files and unlike PB, encourages mass-transfer by offering incentives (premium accounts, extended subscriptions and a plethora of "toys"). It's the local drug dealer. Sure the dealer can cut it's product, add some filler, but that will cut into profits. The only way RS can stay on top is to relocate.
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Jake, 1 Oct 2008 @ 10:11pm

Re: The judge is within German law
My thoughts exactly. Personally I think the DMCA went way too far; I think the burden of proof that they genuinely had no way of knowing that their users were indulging in criminal activity should have remained with the platform provider. Besides, I dare say Rapidshare gets used for worse things than copyright infringement.

That being said, I have to give Rapidshare credit for making the effort; it sounds as if they were doing the best they could, and the loophole was a genuine oversight rather than simple laziness.
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Dom, 2 Oct 2008 @ 4:34am

Rapidshare? have fun.
I have to say, i don't really care about what german judges are doing, i don't care about copyright infringement, because it just happens out of their own fault.

Why do i have to pay 20Dollars in my Cinema, to see a film, with a small popcorn and a coke? That is ridiculous!

Back to the topic, I think it is an infringement of my own privacy, if i go to rapidshare, i think of saving my files, having a backup, just as when today my little daughter tipped melon juice on my laptop.

I'm really happy to have my files backuped there!
And I'm happy to pay the 3 or 4 bucks.

I don't want anyone to see, whats on my computer, not that i do illegal things, i just don't like it. (Why call it Personal Computer then?) That's why i got a password for my account on my Computer!
And Rapidshare is NOT a open page, Rapidshare ensures, that it will keep your data private and I am the only one, who knows the download links. Just if YOU share them with others, you offend the law.

Rapidshare is too big, imagine, how many matches you get when you type in "warez" into the australian google: 80,000,000 (Eighty-Million.) And most of them have more than just one movie uploaded on rapidshare...
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goldentech, 2 Oct 2008 @ 7:58am

Rapidshare is actually a very good place to find pirated content, only if you know where to search for the files. Most countries have already throttled torrents and downloading a BluRay rip of Transformers on torrent just doesn't cut it.

Anyway if they shutdown Rapidshare, MegaUpload would be the next big thing. Cut 1 head off and another 10 heads emerge!
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Tom Chandler, 2 Oct 2008 @ 10:34am

It’s not P2P!
If a home user runs their own HTTP or FTP server, maybe you could describe that as P2P. Here, there’s a commercial RapidShare server between any two ‘peers’.
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Tom Chandler, 2 Oct 2008 @ 10:37am

Re: The judge is within German law
Mike Allen wrote…
The same applies for most of Europe including the UK.
It’s not quite the same in the UK. To the best of my knowledge, case law only makes you liable once you are made aware of the problem content. In Godfrey v. Demon Internet Service, Demon got into trouble for not promptly removing posts from their own Usenet server, after receiving the complaint.

Although I don’t use RapidShare (I’m too cheap to pay for a service, and the free one is useless), my understanding is that a lot of the content is put up in password protected container files, such as Zip and RAR. Some bright spark suggested that all RapidShare needs to do is ban password protected files. If that became the case, users of the service would simply start using encryption software that didn’t leave any tell-tale signature.

You can hardly restrict the service to strings of bits that RapidShare can interpret; you’re just something like Photobucket at that point. Regardless of who should be liable, unless the court wants to make all general-purpose hosting services illegal, it’s technically unachievable. It makes about as much sense as the decision in the case of Belgian ISP Scarlet, where the only way Scarlet can currently stop being fined is for them to switch off their network.
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Elvis, 2 Oct 2008 @ 11:59pm

"Infringing files"?
Wow...
"A German court has told file hosting company Rapid Share that it needs to proactively screen and monitor all content hosted on its site and remove any infringing files".

That also means other p2p sites, too, I guess.

That also means they have to remove EVERYTHING!
hehehe
Who would post their last summer's vacation video online for the whole world to see? hehehe
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Fleur, 26 Jan 2009 @ 10:12am

http://indexoffiles.com
Very useful files search engine. Indexoffiles.com is a search engine designed to search files in various file sharing and uploading sites.
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Game Downloads, 11 Mar 2009 @ 9:37am

http://sharesdigger.com is a great way to download whatever you need now. I found a lot of free useful files there.
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Rapidok, 2 Nov 2009 @ 4:59pm

thanks for the article
Thanks for the article. The interesting thing is that the more they fight against p2p sharing, than more publicity they give to it making it even more popular.
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