German Court Says Rapidshare Must Get Magical Powers To Know Which Songs Infringe And Which Do Not

from the how's-that-going-to-work? dept

Wed, Jun 24th 2009 4:00pm — Mike Masnick

Last year, the German music collection society GEMA sued Rapidshare claiming that the company had to filter out any infringing content. Of course, this makes little to no practical sense. Rapidshare is a platform that users use to share content. Rapidshare itself has no way of knowing whether the content is infringing or not, and any liability should be on the users, not the platform. But... courts don't always understand such things, and so a German court has now ruled that Rapidshare must stop certain songs from being distributed. GEMA, of course, is thrilled, noting that this means the copyright holders are "no longer required to perform the ongoing and complex checks." But, it means that Rapidshare not only has to perform ongoing and complex checks, it has to do so without having any information on what's legit or not. What if musicians want to share their music that way? What if the use is fair use? RapidShare appears ready to appeal, noting that appeals courts on these issues have been much more reasonable, so they're hopeful that the decision is reversed or greatly limited.

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Filed Under: copyright, file sharing, germany
Companies: gema, rapidshare

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Anonymous Coward, 24 Jun 2009 @ 4:11pm

Actually, the german court is saying what I have said before: If you don't know if you have the rights, don't post it, don't share it, don't distribute it.

Instead of forcing the copyright holder to play cop all the time trying to track down every instance of their song that isn't legal, it should be on those who post, distribute, and help distribute to know they have the rights to do so. If they don't know, don't post.

Respect.
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Anonymous Coward, 24 Jun 2009 @ 4:26pm

Re:
that idea falls apart with any hosting company. lets take your post for example. how does Techdirt, Techdirt's ISP, your ISP, or my ISP know that what you wrote is your own words and not something you stole from someone else?

Further more why should Techdirt, Techdirt's ISP, your ISP, or my ISP be responsible for finding out? Shouldn't that responsibility be on the person who you potentially infringed?
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Anonymous Coward, 24 Jun 2009 @ 4:33pm

Re:
So how does Rapidshare know who does and doesn't have rights? Your asking people to be completely honest all the time and always do the right and that is just laughable in and of itself.
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Anonymous Coward, 24 Jun 2009 @ 4:35pm

Re: Re:
or he is suggesting that only content creators should host websites which is equally laughable as things like youtube would never exist work within that mentality, every content creator on youtube would have to host their own website.
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Mike Masnick (profile), 24 Jun 2009 @ 4:35pm

Re:
Actually, the german court is saying what I have said before: If you don't know if you have the rights, don't post it, don't share it, don't distribute it.

Not at all. What the court is saying is that if Ford can't make a car obey the speed limit, it can't make cars.

That's a problem.

Instead of forcing the copyright holder to play cop all the time trying to track down every instance of their song that isn't legal, it should be on those who post, distribute, and help distribute to know they have the rights to do so. If they don't know, don't post.

Uh, it IS up to those who post it. But Rapidshare is the tool. It's not the person who posts it.
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RD, 24 Jun 2009 @ 4:43pm

Wow...awesome FAIL
"Actually, the german court is saying what I have said before: If you don't know if you have the rights, don't post it, don't share it, don't distribute it.

Instead of forcing the copyright holder to play cop all the time trying to track down every instance of their song that isn't legal, it should be on those who post, distribute, and help distribute to know they have the rights to do so. If they don't know, don't post."

Tough shit. Thats not how copyright law was EVER supposed to work. Copyright was a contract between rights holders AND society, to balance BOTH needs. What you suggest is a totalitarian, permanent lock-in in favor of ONLY rights holders and NEVER society, forever. This is not only not possible but not what copyright was created for, and no amount of attempted perversion and FUD spreading on your part will change that (short of a change in the law).

Rights eventually revert back to benefit the rest of society. Your suggestion is therefore impossible to determine in all cases. Rolling Stones? Sure, we can be pretty sure thats covered still under copyright. But many, many, MANY other things are not so easy, and as such, fall under either fair use or a reasonable expectation that the rights have reverted back to society.
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Anonymous Coward, 24 Jun 2009 @ 4:58pm

Re: Re:
"Uh, it IS up to those who post it. But Rapidshare is the tool. It's not the person who posts it."

I think you need to read the rapidshare T&C:

"II. Upload Regulations

(1) Basically, users may save any file at RapidShare irrespective of the file format or of the file contents. Excluded, however, are files the possession and/or circulation of which is illegal, such as

* - child pornography content,
* - works the download of which violates third party copyrights;
* - racist or violence-glorifying works,
* - instructions to criminal offences against public peace.

This list is not conclusive."

They have, by their own terms, placed limits on the content. As soon as they start deleting ANY content, the effectively could become responsible for all of it.

Further, the Rapidshare business model is to "sell" speedier access. Access to what? Content. Effectively, Rapidshare and the uploading user are partners in business.

They are closer to a file host, but they still don't profit off of hosting, they profit off of displaying - a very different business than hosting.
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Anonymous Coward, 24 Jun 2009 @ 5:02pm

Re: Wow...awesome FAIL
RD, are you perpetually angry? Can you not answer a post without a four letter expletive and an insult?

We are talking music here. Either you have the rights or you don't. There isn't much great area here. heck, let's look at movie files too. Not much grey area here, either you have the rights or you don't. If you have the rights, it should be easy to prove. If it isn't easy to prove, well, then you probably don't have the rights, end of problem.

The issue I have is the assumption that everyone has the rights to distribute, which is just not the case. Business such as these "file hosts" that turn away and don't watch as people use their business for illicit transactions are helping the criminal element to do their deed. The German court has asked them to stop.
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bigpicture, 24 Jun 2009 @ 5:11pm

Re: Why the world is the way it is.
It is no wonder the world is the way it is when logic like this is applied to issues. (assumed rights to language and ideas) The fact that any work that is created automatically is covered under copyright in the US, and they are trying to ram that system down everyone else's throat. So then essentially everything that is posted (including this e-mail) is in theory copyright unless specifically disclaimed. That is why open source software is sometimes referred to as "copyleft" because the copyright is not about posing use restrictions, but about granting use freedoms through the "copyright" system.

But the bottom line this ruling essentially prevents Rapidshare from posting anything at all. (except of course open source software, because it is about granting freedoms and not about restricting rights including "fair use".

And don't go all lawyer here and split hairs about what is "fair use" and what is not. The WHOLE COPYRIGHT SYSTEM IS CRAP and needs to be totally revamped.
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Osno (profile), 24 Jun 2009 @ 5:20pm

As with all these filters, my gut reaction is "meh". Rapidshare has always been the land of the password-protected rar file, anyway. Good luck knowing what's inside that!! And also, because of the way it works it's really not that good for massive infringement.
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Mike Masnick (profile), 24 Jun 2009 @ 5:21pm

Re: Re: Re:
They have, by their own terms, placed limits on the content. As soon as they start deleting ANY content, the effectively could become responsible for all of it.

Again, I like how you make up your own rules, but that's not true at all. Just because you're willing to remove some content *when alerted to it* doesn't mean you need to pre-police everything.
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RD, 24 Jun 2009 @ 5:30pm

Wow...awesome FAIL....AGAIN!
"RD, are you perpetually angry? Can you not answer a post without a four letter expletive and an insult?"

Not when fucking idiots post stupid shit, no. However, see the post under the Amanda Palmer topic to disprove your assertation.

"We are talking music here. Either you have the rights or you don't. There isn't much great area here. heck, let's look at movie files too. Not much grey area here, either you have the rights or you don't. If you have the rights, it should be easy to prove. If it isn't easy to prove, well, then you probably don't have the rights, end of problem."

Again, and I'll say this for those in the cheap seats:

TOUGH

SHIT

Copyright law is written so the burden of proof is on the RIGHTS HOLDER, not society in general.

TOUGH SHIT if you dont like it, get the law changed then (if you can.) But inventing impossible conditions to address the issue is not going to work, and isnt the law's purpose NOR gives them the right to do so.

"The issue I have is the assumption that everyone has the rights to distribute, which is just not the case. Business such as these "file hosts" that turn away and don't watch as people use their business for illicit transactions are helping the criminal element to do their deed. The German court has asked them to stop."

Bzzzt! Wrong again. Gun makers arent liable for how the tool is used (or misused) and I think ANYONE would agree, a gun's only purpose is to kill something (or at least, to violently destroy something). Well, anyone but you I'm sure, since you seem to be under the impression that laws exist to hold everyone in the chain of events responsible EXCEPT the person actually breaking the law.

Welcome to TD, Steve Dallas.
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CleverName, 24 Jun 2009 @ 5:32pm

Re: Re: Wow...awesome FAIL
How do you propose that the rest of the world pay for this magical policing of teh intarwebs ?

I do not share infringing files, and yet I will be asked to fund the effort put forth by whatefver ISP I happen to be using.
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RD, 24 Jun 2009 @ 5:47pm

Why....
"How do you propose that the rest of the world pay for this magical policing of teh intarwebs ?"

Why, through the magic of COPYRIGHT, of course! The rights holders demand it, therefore all of Society must comply, since the constitution grants NO rights to the individual, and ONLY grants rights to the Corporation and Rights Holders! Thats right, right? I interpreted the founding father's vision and intent correctly, didnt I?
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Steve R. (profile), 24 Jun 2009 @ 5:49pm

Absurd Statement
The statement "If you don't know if you have the rights, don't post it, don't share it, don't distribute it." Is absurd on its face.

True, if you have a recently issued music CD one can reasonably assume that it is all copyrighted-up. But things really aren't all that clear. Think about it, how can any one individual know the full scope of contracts that exist for a particular piece of content. You simply can't look this up through a simple Internet search to find out.

Not only that but the content producers are claiming rights that they don't even own. So if someone is claiming a copyright that they don't even own, you simply accept their FUD as truth? For example, Mike just wrote about Shakespeare and copyright. Oxford Press has a copyright notice on King Lear. To the casual reader, the implication is clear, King Lear is copyrighted. What Shakespeare wrote is not subject to copyright, though what Oxford Press added is. Consumers should not have make these distinctions nor should they have to prove that they have a legitimate right. Due process requires that the copyright holder demonstrate that they actually have an ownership interest.

The responsibility for a protecting content belongs to the copyright holder. The consumer should not feel constrained in the use of content based on undocumented "proof". In the absence of any valid proof, the consumer should be free to use content as they wish.
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Anonymous Coward, 24 Jun 2009 @ 6:11pm

Re:
Except two things.

1) Copyright is not the natural state. Most information in the world is not copyrighted or copyrightable.

2) They distribute. It's not up to them to make sure the good aren't stolen. That would be between the police, buyer, and seller.

Could you successfully sue a shipping company for transporting an item which turns out to break someone's patent? I guess you could in Germany...
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Anonymous Coward, 24 Jun 2009 @ 6:24pm

Re: Re:
If the shipping company knowingly transported it, yes.
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Anonymous Coward, 24 Jun 2009 @ 6:25pm

Re: Wow...awesome FAIL....AGAIN!
RD, seriously, contact someone and get back on your meds. I have never seen so much anger for what is just a discussion amongst intelligent people.

In the meantime, welcome to my personal ignore list. Flame away, troll.
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RD, 24 Jun 2009 @ 6:48pm

Why....
"The responsibility for a protecting content belongs to the copyright holder. The consumer should not feel constrained in the use of content based on undocumented "proof". In the absence of any valid proof, the consumer should be free to use content as they wish."

Thats why there is ALREADY A LAW FOR IT. It's called Copyright law. Also, there is this little thing called "Due process" that the copyright nazi's dont acknowledge.

"Could you successfully sue a shipping company for transporting an item which turns out to break someone's patent? I guess you could in Germany..."

According to the Anonymous Fucktard, YES! How you do it is, you IGNORE the parameters of copyright law (except those which benefit ONLY YOU) and you hold EVERYONE ELSE responsible (manufacturer, shipper, distributor, store) EXCEPT the actual individual responsible! Also, you circumvent due process to do it and get all those OTHERS to do it for you.

Welcome to the Fascist State of Copyright according to Anon. A-Hole!
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Anonymous Coward, 24 Jun 2009 @ 7:10pm

Re:
so true and lets have guns that tell if its legal to shot whatever its aiming at, and just get rid of most of the internet to protect the copyrights
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Anonymous Coward, 24 Jun 2009 @ 7:40pm

Re: Re: Re:
"They have, by their own terms, placed limits on the content. As soon as they start deleting ANY content, the effectively could become responsible for all of it."

This is like saying, as soon as a copy pulls over anyone who speeds, he should effectively be responsible for EVERYONE who speeds (even though he is practically unable to catch everyone who speeds all the time). This is ridiculous.
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Anonymous Coward, 24 Jun 2009 @ 7:41pm

Re: Re: Re: Re:
sp/This is like saying, as soon as a copy pulls over .../This is like saying, as soon as a cop pulls over ...

So then, should we just get rid of cops altogether, simply because they can't catch everyone who speeds? Should we just eliminate the freeways and such simply because we can't catch everyone who speeds? NO!
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Anonymous Coward, 24 Jun 2009 @ 8:14pm

Re: Re: Re: Re: Re:
Answer is not directly - but once you start accepting responsiblity for SOME of the content, you can be liable for the rest of it. If they can filter out CP, they can filter out music. It's just one of those things.
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Hephaestus (profile), 24 Jun 2009 @ 8:33pm

GEMA would ....
If GEMA would release an acurate list of what is protected under them and what isnt (yeah you cant prove a negative but you can say this doesnt belong to us).... ie provide multiple check sums on each music file that is infringing I wouldnt have a problem with this..... If it was proven in court that the music file was violating copyright then remove it.

Thanks you just gave me another great Idea....

189 entry/note) an open system to verify these sort of disputes..... that includes DMCA cancelation/blocking....
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Anonymous Coward, 24 Jun 2009 @ 9:22pm

Re: Re: Re: Re: Re: Re:
They don't filter out CP, but if they are alerted to its presence they take action. These are quite different things, and destroys the argument being made.
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Anonymous Coward, 24 Jun 2009 @ 9:25pm

Re: Re:
Except that in the US, copyright is a natural state. Copyright exists from the moment of creation, and does not need to be applied for.
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Anonymous Coward, 24 Jun 2009 @ 9:32pm

Re: Re: Wow...awesome FAIL....AGAIN!
Seems intelligence is lacking in some of these posts. I Like RD's flames, since he does tend to point out the bullshit that people spread. So go ahead, ignore his posts. Shows where the true intelligences lie.
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RD, 24 Jun 2009 @ 9:38pm

Flame away!
"Seems intelligence is lacking in some of these posts. I Like RD's flames, since he does tend to point out the bullshit that people spread. So go ahead, ignore his posts. Shows where the true intelligences lie."

Thank you! And not for just agreeing with me, but getting the POINT! Perhaps someday, these others will as well.
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Rekrul, 24 Jun 2009 @ 10:02pm

Re:
Instead of forcing the copyright holder to play cop all the time trying to track down every instance of their song that isn't legal, it should be on those who post, distribute, and help distribute to know they have the rights to do so. If they don't know, don't post.

So you'd want your ISP to personally check and clear each and every piece of email you send and receive to make sure that you're not trading any copyrighted files? After all, you and a friend could be trading copyrighted MP3 files and the ISP would be helping you. So by your logic, the ISP shouldn't allow you to send or receive any email until they have verified that it doesn't contain any copyrighted files, right?
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Rekrul, 24 Jun 2009 @ 10:06pm

Re: Re: Wow...awesome FAIL
The issue I have is the assumption that everyone has the rights to distribute, which is just not the case. Business such as these "file hosts" that turn away and don't watch as people use their business for illicit transactions are helping the criminal element to do their deed. The German court has asked them to stop.

Apply that same logic to shipping companies like FedEx and UPS. Illegal things such as bootleg DVDs and drugs get shipped through these businesses every day and yet they turn a blind eye on what their customers are doing. Should they be required to open and inspect each and every package shipped through their service to ensure that it doesn't contain anything illegal?
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zcat (profile), 24 Jun 2009 @ 11:26pm

Re: GEMA would ....
Youtube already have such a system, only it doesn't work on checksums (that would be almost impossible, everyone who rips their own CD or re-encodes at a different bitrate or makes even the slightest change to a file will generate a different checksum) youtube's system recognizes a fingerprint of the music or video itself, the actual sequence of notes and/or images even if they're not bit-for-bit identical.

Of course that's not good enough for the music industry either; only in the last few days some record label was complaining about the excessive burden involved in uploading all the content they wish to claim copyright over.

I personally think google should long ago have told the recording industry to go fuck themselves. I'm quite certain that even if Google went ahead and indexed and generated a fingerprint for every CD in existence, at their own expense, just to police copyright infringement the record labels would still consider this fingerprint an 'infringing derivative work' and demand some small fee every time the fingerprint gets used by google to verify a non-infringing upload.
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Jill, 25 Jun 2009 @ 1:39am

music
This is basically another signs of the death knell in the music industry. They have failed to update their business models. Constantly suing people is not going to fix a poor business model based on how the world worked 20 years ago.
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Anonymous Coward, 25 Jun 2009 @ 4:56am

Re: Re: Re: Wow...awesome FAIL
"Apply that same logic to shipping companies like FedEx and UPS. Illegal things such as bootleg DVDs and drugs get shipped through these businesses every day and yet they turn a blind eye on what their customers are doing."

Oh geez, what a lame argument.

First off, you are talking packaged goods - goods with both a originator and a destination registered. If anyone wants to know where the package is from or going to, they will know. There isn't a wide one to many distribution here.

Secondly, just as important, you are talking about sealed packages, which Fedex and UPS cannot easily see the insides of. Doesn't compare to a filehost, who gets each byte of data unprotected. In other words, if you showed up at Fedex with a clear baggy of weed, dropped it on the counter and said "I want to send this to my buddy", they would probably refuse your business (or accept it and call the cops).

Thirdly, and very important: If Fedex or UPS notices somethig illegal, they don't just toss it in the garbage and wash their hands of it, they call in the authorities and work from there.

Basically, if rapidshare could always identify the person uploading and the person downloading, and if a copyrighted file is detected that they turn over those customer records and logs to the copyright holder for prosecution, you might have something.

Quite simply, Rapidshare isn't even living up the standards of the courier companies, so bad comparison.
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Stingwolf, 25 Jun 2009 @ 5:29am

Re: Re: Re:
"If the shipping company knowingly transported it, yes."

How, exactly, does Rapidshare -knowingly- transport infringing material? It's all automated. Unless content is reported, they don't -knowingly- do anything.
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Anonymous Coward, 25 Jun 2009 @ 6:35am

This is why MS Windows tries to play the cop.
I never understood why MS Windows felt it was its responsibility to include copy protection technology in their OS. To me it always seem to be detrimental to the implementation of the core systems and especially to the end user.
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Rob, 25 Jun 2009 @ 8:13am

"Secondly, just as important, you are talking about sealed packages, which Fedex and UPS cannot easily see the insides of. Doesn't compare to a filehost, who gets each byte of data unprotected. In other words, if you showed up at Fedex with a clear baggy of weed, dropped it on the counter and said "I want to send this to my buddy", they would probably refuse your business (or accept it and call the cops)."

Wow, you are an idiot. The filehost gets each byte of data unencrypted? What happened when the file is uploaded in a password protected .RAR (which a very large % of RapidShare files are)? Does RapidShare have to crack the password on the archive so that they can peek inside and spy on you? What about people that, I don't know, re-encode the files and name them something irrelevant, or spell the name wrong? Are we going to demand that RapidShare hire a person to manually inspect each file that is uploaded for infringing content? This requires massive manpower, which costs a massive amount of money, which would need to come from somewhere (subscription fees), not to mention the fact that it would take far longer for files to be uploaded, greatly reducing the value to the customer. Reducing value while simultaneously vastly increasing cost to that degree would fail immediately.

Extrapolating this outwards, holding up this unrealistic standard would completely kill the Internet as we know it. If this were to be held up as the standard, we would not even be able to have this open conversation here, comments would have to be individually inspected to ensure that I am not posting any copyrighted text, raising the marginal cost for a comment from very close to $0.00 to several dollars, making the comments section entirely unfeasable. Say goodbye Youtube, Facebook, Google, Craigslist and everything else that makes the web what it is, as EVERY SINGLE ASPECT of these sites would need to be manually moderated, which would make them entirely impractical without charging, which nobody is going to be willing to do after having these services for free. This would bring an already struggling economy to its knees and kill one of the most valuable tools we have in our free expression.
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angry dude, 25 Jun 2009 @ 9:43am

Mike's world
In Mikey's world stealing something and getting away with it == success

Way to go, little punks
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Anonymous Coward, 25 Jun 2009 @ 10:01am

Re:
You post all that and you call me an idiot? Holy crap!

I am glad you aren't a lawyer giving people advice like that, they would be too scared to come out of their basements.
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Anonymous Coward, 25 Jun 2009 @ 5:07pm

Re: Re: Re: Re: Wow...awesome FAIL
Secondly, just as important, you are talking about sealed packages, which Fedex and UPS cannot easily see the insides of.

Not true. I have had the experience of taking sealed packages to FedEx and UPS counters for shipment and watched as the counter staff "easily" cut the packages open and inspected the contents before resealing and accepting the packages. So I know your claim that they can't do that to be false.

Doesn't compare to a filehost, who gets each byte of data unprotected.

In consideration of what I just described, why not?

In other words, if you showed up at Fedex with a clear baggy of weed, dropped it on the counter and said "I want to send this to my buddy", they would probably refuse your business (or accept it and call the cops).

Doesn't have to be in a clear baggy, it can be in a sealed box. All they have to do is look inside.

It seems to me that filehosts and FedEx/UPS are indeed similar in that both can inspect the contents of what they are carrying. So if a filehost should be liable, then so should FedEx/UPS or neither should.
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Chris, 9 Sep 2009 @ 8:59am

Guns don't kill people. People kill people.
Guns don't kill people. People kill people.

You cannot put it down to rapidshare for abusing copyright laws, it is a service that makes others lives easier, what if people do not have a website? Everything would have to be share via email or hard copies.

Similar to the PirateBay trial the other day, not only did TPB not have the files on their server but they have strict rules all over there site. Yes it was blaitantly obvious what was going onto their site but unless they just got rid of the site completely the piracy will always be there or move on to a new site.

Get chinese hosting for complete bulletproof hosting, then switch when it gets serious but tell the host to say they cannot find your details, the accuser will spend forever chasing a paper trail ;)
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