German Court Says ISP Not Responsible For Users Who Infringe

from the about-time dept

Thu, Sep 15th 2011 4:04am — Mike Masnick

As we've noted in some past stories, and as I discovered in great detail last year when I was there, German copyright law is a huge mess, where secondary liability issues are extremely unclear with many people arguing that the law allows for broad secondary liability on just about anything. For example, during one of my speaking engagements, someone in the audience read aloud a comment from Techdirt, and warned me that, under German law, I was legally responsible for that comment (which referred to... um... a rather dark period in German history) and that I must delete it.

When it comes to copyright, this has caused all sorts of other problems and it's one of the reasons that YouTube remains limited in Germany. Part of the issue is that the court rulings in Germany have been mixed on this, with no clear precedent yet being set. Thankfully, a recent ruling has rejected EMI's attempt to pin secondary liability on an ISP for its users infringing. EMI had argued that the ISP, HanseNet, should be forced to use DNS blocking to stop some of its users from infringing. The court ruled against EMI's view and said that such an argument was "unprecedented." Tragically, I don't think that's quite accurate considering some other rulings in the country, but at least it's nice to see some additional good rulings on issues like secondary liability.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, germany, secondary liability, third party liability
Companies: youtube

16 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 15 Sep 2011 @ 4:26am

Come on Mike, at least feed the trolls! What's the comment in question you had to delete?
[ link to this | view in chronology ]
herbert, 15 Sep 2011 @ 4:52am

nor should they be. just because that is the situation in USA and will soon be in the UK from what i read, doesn't make it right.
[ link to this | view in chronology ]
abc gum, 15 Sep 2011 @ 5:09am

"EMI had argued that the ISP, HanseNet, should be forced to use DNS blocking to stop some of its users from infringing."

One could say this point of view is naive. It would only upset the customers who do not do bad things.

Even if they could force all users to their DNS, there are still ways in which to reach the banned site.
[ link to this | view in chronology ]
Anonymous Coward, 15 Sep 2011 @ 5:27am

we could just make shots in the dark, until we gues the right one.

here, i'll start "germans have no sense of humor"
[ link to this | view in chronology ]
- Greevar (profile), 15 Sep 2011 @ 6:11am
  
  Re:
  And the internet award for incoherent gibberish goes to: Well, what a surprise! The AC above me!
  [ link to this | view in chronology ]
Anonymous Coward, 15 Sep 2011 @ 6:28am

http://boingboing.net/2011/09/14/mexico-two-tortured-murdered-for-using-twitter-blogs-to-report-narc o-crime-bodies-hanged-from-bridge-as-warning-to-others.html

At least Germans didn't risen to the level of the narco-gangs in Mexico like in the old days of the SS.
[ link to this | view in chronology ]
Anonymous Coward, 15 Sep 2011 @ 6:34am

Wait a minute! Didn't you argue in the past that ISPs are something like fourth party liablity, not second? It seems that when the judgement is good, you move them up the pecking order, but when things are a little tough, you mark them down as bit players.

Which is it Mike?
[ link to this | view in chronology ]
- Anonymous Coward, 15 Sep 2011 @ 6:52am
  
  Re:
  Probably didn't intend anything sneaky. I make little switches like that all the time becuase I don't OCD over things like that.
  [ link to this | view in chronology ]
- abc gum, 15 Sep 2011 @ 6:58am
  
  Re:
  "Didn't you argue in the past that ISPs are something like fourth party liablity, not second?"
  
  I think I missed that post, do you happen to have a link - because you know, others might be interested.
  [ link to this | view in chronology ]
- Josh in CharlotteNC (profile), 15 Sep 2011 @ 7:00am
  
  Re:
  Usually when we talk about 3rd, 4th, and beyond party liability, we're talking about advertisers, payment processors, and tool providers (Google or developers). All of which the legacy entertainment industry wants to also hold responsible for technological progress, changing markets, and the entertainment industry's failure to adapt.
  
  If you could perhaps quote or link exactly what you're referring to, we might be able to try to clear up your confusion. But we all know you don't provide sources.
  
  Regardless of what level of liability it is, ISPs still should not be responsible for what their users do, nor be required to implement solutions to the entertainment industry's economic and business model problem.
  [ link to this | view in chronology ]
  - Anonymous Coward, 15 Sep 2011 @ 7:16am
    
    Re: Re:
    Example:
    
    http://www.techdirt.com/articles/20100518/0958549466.shtml
    
    Referencing the hosting company as "fourth party".
    [ link to this | view in chronology ]
    - Anonymous Coward, 15 Sep 2011 @ 7:41am
      
      Re: Re: Re:
      This article is talking about the Pirate Bay, which doesn't directly host infringing content, therefore is a third party itself. Going after the host of the Pirate Bay is another level removed, fourth party.
      
      The article above is a different situation.
      [ link to this | view in chronology ]
    - Josh in CharlotteNC (profile), 15 Sep 2011 @ 8:06am
      
      Re: Re: Re:
      Fourth party - hosting provider that The Pirate Party uses.
      Third party - The political party The Pirate Party who has agreed to host The Pirate Bay.
      Second party - The Pirate Bay who hosts torrents (links) to both legitimate and infringing content.
      Responsible party - the users sharing the infringing content.
      
      Sounds correct to me.
      [ link to this | view in chronology ]
      - Anonymous Coward, 15 Sep 2011 @ 10:01am
        
        Re: Re: Re: Re:
        Yup, so now, the ISP that provides the service to the user who connection to the ISP hosting The Pirate party, who is providing service to the pirate bay which provides links to the illicit content hosted somewhere... is what?
        
        6th party?
        [ link to this | view in chronology ]
      - Slicerwizard, 19 Sep 2011 @ 10:12pm
        
        Re: Re: Re: Re:
        "Fourth party - hosting provider that The Pirate Party uses.
        Third party - The political party The Pirate Party who has agreed to host The Pirate Bay.
        Second party - The Pirate Bay who hosts torrents (links) to both legitimate and infringing content.
        Responsible party - the users sharing the infringing content.
        
        Sounds correct to me."
        
        I have my doubts.
        
        Copyright owners and copyright infringers - first and second parties.
        
        Pirate Bay - third party.
        
        Host - forth party.
        [ link to this | view in chronology ]
Anonymous Coward, 15 Sep 2011 @ 10:41am

Mike, let me add this:

" For example, during one of my speaking engagements, someone in the audience read aloud a comment from Techdirt, and warned me that, under German law, I was legally responsible for that comment (which referred to... um... a rather dark period in German history) and that I must delete it. "

Google.de has and does block out websites that do not conform to German law, if your case ends up in front of one of their many "protection" councils. example:

http://en.wikipedia.org/wiki/Bundespr%C3%BCfstelle_f%C3%BCr_jugendgef%C3%A4hrdende_Medie n

Basically, if they find something online that somehow falls into the category of "offensive to youth" they can have it removed from Google by order, and blacklist the site in question.

You visiting Germany could get you in some serious trouble. They were not kidding.
[ link to this | view in chronology ]