German Supreme Court Suggests Cyber Lockers Need To Filter Content If Alerted To Copyright Infringement
from the how-does-that-work? dept
A few years back, Megapuload and Rapidshare were often discussed in the same breath as the "big" cyberlockers for sharing content. However, over the last couple years or so, Rapidshare has made a concerted effort to make it clear that its service is not designed for sharing infringing works, and to make it more and more like a Dropbox-type offering. If you look at the cyberlockers that the MPAA complains about these days, Rapidshare is no longer on the list and is rarely discussed. The company has bent over backwards to show that it's a "good guy" in the space, and shouldn't be accused of being a "rogue site." Of course, that hasn't stopped some of the lawsuits. Following a confusing, mixed ruling in one, there's now been another confusing and mixed ruling at the federal Supreme Court in Germany.The ruling basically found that RapidShare is not liable for uploads directly, but if it's told of an infringing file, it should have a system in place to prevent that file from being uploaded back into the service. It sounds like the courts are magically deciding that if you host any kind of user-generated content, you have to have a filter in place that consistently blocks content once it's been indicated as infringing. That seems problematic for a few reasons. First, the context of a file being uploaded matters a great deal. As we've seen with Viacom, one person's infringing upload may be the same company's attempt at viral marketing. Doing a full-on block may block legitimate content. Furthermore, the context of the usage seems to matter quite a bit. A short clip with commentary could be fair use, but also could be blocked under such a system. Requiring a filter could also be quite expensive.
On top of that, Rapidshare is focusing more on personal backup, and there are lots of cases where a personal backup isn't infringing, but the system the court is requiring could block such uses. While the judge apparently dismissed this concern because of Rapidshare's name ("The service is called RapidShare and not RapidStore... and that says it all.") that's really troubling. Just because the company is called "RapidShare" it does not mean that's all the company can do. Lots of companies change over time, and it's a little crazy for a judge to hold them to exactly what their original name says.
Either way, the court has sent the case back down to the lower court to determine if Rapidshare had successfully blocked repeat infringement, so this case is far from over...
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, cyberlockers, filters, germany
Companies: rapidshare
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in thread ]
fine points of grammar
To be fair, in the original text this seems to be a comment by the judge, not a justifying argument; there's nothing to indicate that he rejected RapidShare's argument because of its name.
[ link to this | view in thread ]
You missed it probably violates EU privacy laws, as it requires the company to monitor and scan a persons files.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
If cable TV had to live up to this standard
*I believe MTV officially dropped Music from its name a few years ago
[ link to this | view in thread ]
Re: If cable TV had to live up to this standard
[ link to this | view in thread ]
Yeah, it says that people are sharing files, but *NEWS FLASH* that doesn't necessarily equate to sharing infringing content. Isn't the entire internet built around sharing data? In that respect, need every domain, ISP and service provider be filtered at the behest of the legacy players? If they had it their way, the internet would become one huge glorified advertisement/shopping mall for their products and everybody would be monitored at all times. No more independent artists, no more freedom of speech, no more sharing information, no more crowd-sourcing. The internet would become just like TV and radio: useless.
[ link to this | view in thread ]
A golden opportunity awaits...
[ link to this | view in thread ]
[ link to this | view in thread ]
With the added benefit of all that shiny fool's gold =)
[ link to this | view in thread ]
Tinfoil hat time?
So it could just be me, but it seems like that would be a perfect way for the recording industry to completely shut down an artist trying to use a file sharing site like that to post their work. Simply claim it's infringing, and presto, the artist just lost an outlet for their music.
There really wouldn't be any reason for them not to do this either, it's not like there's any punishment at all for a false claim.
Probably just paranoia, because hey, I'm sure they'd never do something as underhanded as that...
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: If cable TV had to live up to this standard
[ link to this | view in thread ]
Re: Tinfoil hat time?
There really wouldn't be any reason for them not to do this either, it's not like there's any punishment at all for a false claim."
They already do this, frequently, and that's the idea: to suppress anything that's not controlled by themselves. Most people don't have the kind of money necessary in order to retaliate legally and they know this -- that's the way the courts are designed, to intentionally favor the elites.
[ link to this | view in thread ]
Re:
Every nation on earth has committed atrocities, the English took over most of the world, the Americans slaughtered their indigenous peoples (the only nation to deploy nuclear devices against civilians) even the French spent several centuries in bloody wars.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: fine points of grammar
[ link to this | view in thread ]
Re: Re:
And don't even ask about the Germans...
[ link to this | view in thread ]
Re: Re:
My money's on plain ignorant. I bet he'd also be the first to complain if we started attacking the US (or whatever country he's in) for their past indiscretions and atrocities.
[ link to this | view in thread ]
A sufficiently closed cyberlocker should be completely in the clear when it comes to copyright.
Understanding the subtlety of what is ok to demand and what is unfair to demand is a thin line.
[ link to this | view in thread ]
Re: If cable TV had to live up to this standard
[ link to this | view in thread ]
Re: If cable TV had to live up to this standard
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
Hopefully it's trolling not a real example of your actual thought processes.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Lame defense. There are very few legit uses, and very many illegal ones. Rapidshare (or any file locker) could allow companies to establish "clear" accounts where they could upload their own material without issue. A filter isn't all or nothing, unless you have really, really bad programmers.
As I mentioned in my notice to you about the story, I am not surprised to see you trying to spin it. You missed the best line, which is the court basically saying the site is called Rapid SHARE, not Rapid STORE, which sort of points out that they aren't a file locker, just a way to share stuff with everyone.
The court made it pretty clear that they couldn't just plead ignorance. Once they know something is infringing, they need to keep it off. No DMCA style revolving door.
[ link to this | view in thread ]
Re:
Oh yes, because, after all, sharing is defacto illegal. No one would ever share anything legit or use it for backup storage.
It's a good thing the courts have ruled that it's illegal to allow something to exist (like guns for instance) unless its only used for 100% legal uses. Any illegal use and the entire thing/business must be sued and scrapped and blacklisted. Like cars used in a bank robbery - whats that? The courts haven't made these things illegal due to some portion of them being used illegally? But that can't be! Asshole Coward just declared that file sharing IS DEFACTO ILLEGAL! He can't be wrong now, can he? No no no, it's everyone ELSE that is wrong, has to be.
[ link to this | view in thread ]
Re:
"While the judge apparently dismissed this concern because of Rapidshare's name ("The service is called RapidShare and not RapidStore... and that says it all.") that's really troubling. Just because the company is called "RapidShare" it does not mean that's all the company can do. Lots of companies change over time, and it's a little crazy for a judge to hold them to exactly what their original name says."
Also, as mentioned above, sharing does not have to mean illegal file-sharing. Personal photos to family, song files in a collaboration with friends (not copyrighted works, original stuff), Creative Commons/public domain works..
Also, even if something has just one legit use, it makes no sense to ban it. You don't ban crowbars, knives, cars etc just because they CAN be used illegally. Sure, knives are good for cutting stuff like rope, branches, straps and shit (I work on a ferry and every deck crew member must carry such a knife for emergencies like getting caught in ropes while tying up) but to make them illegal because they can be used to hurt others? Can't see that happening.
[ link to this | view in thread ]
Re:
Spoken like someone who has never played an online MMO as part of a corporation/guild/team who need to pass perfectly legal information back and forth when the game doesn't allow transfer of large image files or docs. Legal as in stuff we created ourselves and shared with our teammates. I even have that need for Minecraft now too.
We used Megaupload and Rapidshare all the time, until we discovered Google Docs, at which point we used the lockers to just place archived information.
Make a tool and people will find use for it, legitimate or illegitimate. I am really surprised you're not pushing for the outlaw of hammers, axes, guns, etc. as all those tools have legitimate and illegitimate uses too.
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re:
The one he quoted directly and linked to in the 3rd paragraph of the article? The one that the entire paragraph discussed? That one?
You do seem to have a major case of wilful blindness when it comes to reaffirming your own assumptions. Glad to see that even submitting your own stories leaves you unable to read what's been written properly. At least it helps confirm you're not interested in discussing the real issues here.
Blah, blah... another attempt to push all responsibility for policing copyright on to 3rd parties with the added bonus of shutting down avenues for non-legacy corporations to make money. Move along, nothing to see, just the usual crap you've been spouting for a decade...
[ link to this | view in thread ]
Re: Re: Re:
As I said below, song files on collaborations. Being a musically-inclined kinda guy, I know a thing or two, so lets break it down:
My friend and I want to create a song together. He lives in another part of the country, so sharing vis USB is unfeasible. It's a pretty epic track, over 30 mins in length, divided into 3 movements. Now even I know a track 30 mins in length is hard to work with, so let's work with 10 minute lengths. For each of the movements, there's a kick drum, snare, cymabls/crashes/rides, pads, guitars, the bassline and a spare track for fills or what have you. That's 7 tracks minimum. They have to the best quality, naturally so we use .wavs. So let's see.. 1 .wav track at 10 mins, that's about 95 MB. 7 tracks in total is 665 MB.. 3 movements adds up to nearly 2 gigs. Zipping it up would bring it down, of course, but only to about 1.5 gigs.
And that's just one example of sending large files with no copyrighted works present. Would you like another?
[ link to this | view in thread ]
Re:
There are actually very many legit uses. Backups, online storage, easily accessibility to files from anywhere, file transfer (when physical means aren't available or accessible, USBs and whatnot). And so on and so forth.
In fact, the number of legit uses far surpasses the illegal ones. In fact, with the exception of the sharing of copyrighted material, there are no other illegal uses. (I'm not going to count child porn because that's a given and a problem in a variety of other platforms and ways.)
"Rapidshare (or any file locker) could allow companies to establish "clear" accounts where they could upload their own material without issue."
No, Rapidhsare can't do that. Why not? Because as was evidenced by the whole Viacom/Youtube nonsense, Viacom was having employees upload their own material under various accounts and then claiming copyright infringement against Youtube on said accounts. Also, we've had several notable examples of the left hand not knowing what the right is doing and that leading to false DMCA notices being sent. So there is really no "clear" way to know what or who is behind a given account.
"A filter isn't all or nothing, unless you have really, really bad programmers."
I see, and so to solve someone else's problems, it's more than fair to ask Rapidshare to front the cost and fees of hiring said programmers and then running test to make sure said filters are implemented properly and functioning accordingly? And you and your kind say the pirates are the ones with the sense of entitlement. You want others to fix your problems and pay for doing so.
"As I mentioned in my notice to you about the story, I am not surprised to see you trying to spin it."
If you knew he was gonna "spin it" why send it? Also, how is it being spun? He's pointing out the problems with such actions and the comment made by the judge. That's not spinning things. That's stating an opinion on what happened and in no way is it a crime or wrong to state one's opinion on something. You're the same person who says that all of us who point out how copyright enforcement has thus far failed are obviously thieves/pirates, ignoring the fact that many of us aren't, we're just realists pointing out flaws in the actions of people like you.
"You missed the best line, which is the court basically saying the site is called Rapid SHARE, not Rapid STORE, which sort of points out that they aren't a file locker, just a way to share stuff with everyone."
I guess you missed the part where Mike actually quoted that bit and commented upon it. Also, just because "share" is in the company's name DOES NOT mean it isn't a file locker. Have you ever used Rapidshare? I have. It is very much a file locker. Hey, I use Mediafire too. I guess that means that they set media on fire there by your logic. And Dropbox, which I also use, is a company that's entire business consist of dropping boxes or something along those lines. I won't even get into what Google Drive does... it might be too much for you to handle.
"Once they know something is infringing, they need to keep it off."
And how are they supposed to know something is infringing? The point has already been brought up that literally everything written, recorded, etc. is automatically covered by copyright the moment it's created. There is no way to clearly know what is or isn't infringing. Heck, I already brought up the Viacom example and they themselves had no clue what was being posted or not and whether it was authorized or not. Yet, you want Rapidshare (and others) to magically know? Again, entitlement. Pot meet kettle.
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re:
That's the real issue with "filters for copyrighted material"...pretty much nothing could ever be uploaded anywhere. Everyone really needs to start referring to this sort of thing as "removing files that the uploader did not have the right to distribute". It's never gonna happen though, because the whole point of big media using the term "copyighted works" is to try to convince people that all sharing is against the law.
[ link to this | view in thread ]
Re: Re:
Sigh. How often do we have to do over this?
Those issues occurred in part because Youtube at the time did not allow for "official" accounts, and what you get in very large companies is a question of left hand and right hand not knowing what each side doing. You have to remember that these companies have more than 3 people working for them and they are in offices spread out all over the world.
Now then... what exactly stops Rapidshare from having official accounts for these people? Answer: NOTHING.
""Once they know something is infringing, they need to keep it off."
And how are they supposed to know something is infringing? "
Umm, the copyright holder tells them.
How hard is that to understand? What it means is that when they get whatever passes for a DMCA notice, they not only remove that instance, but they also digitally finger print the work and stop allowing it to be re-uploaded onto other accounts - and remove it from any other accounts that it may be in.
[ link to this | view in thread ]
Re: Re: Re:
Oh, so kind of like the Content ID system on Youtube, which can't be beat? Oh, wait. And yet despite having such a system in place, there is still infringing content on Youtube and there are ways to beat the system that is supposed to prevent such things.
Yes, in your magical world where everything is magically solvable and fixable, this makes perfect sense and Rapidshare should front all the cost of creating and implementing such a system. You're an idiot. No sigh needed.
Also, you conveniently leave out the part where a DMCA notice means absolutely nothing. It's just a notice. Even though it says everything is true, such a notice is quite often used to take down content just because or is incorrect. So you want something digitally finger printed and removed, just on the "word" of an official notice.
You, again, don't see the problem with this?
Sigh.
[ link to this | view in thread ]
Re: Re: Re:
"what you get in very large companies is a question of left hand and right hand not knowing what each side doing"
Which is a major problem, surely? If Viacom doesn't know that Viacom is legally distributing their work via these platforms, what hope does anybody else have? All you need is a leaked password or hacked account to undermine your entire premise, and nobody but Viacom can possibly know what's authorised.
"Now then... what exactly stops Rapidshare from having official accounts for these people? Answer: NOTHING."
What constitutes an "official" account? How does this work for independent producers? What is the recourse for those works incorrectly identified, or that should be covered by fair use laws? How does a person prove they're an "official" person if the product was independently produced? What are the costs associated - is this too prohibitive for anyone outside of a major corporation?
Again, bullshit whing... "We can't do it because it's too haaarrrdd! YOU do it, and we'll sue if you don't do it the way WE want".
If only you people would enter into real negotiation rather than pushing the work on to 3rd parties then whining they couldn't read your minds... YouTube official accounts are a tool - they are NOT meant to be the be all and end all and cannot guarantee anything - hence the fact that you can still find pirated works on YouTube, and every other platform.
"What it means is that when they get whatever passes for a DMCA notice, they not only remove that instance, but they also digitally finger print the work and stop allowing it to be re-uploaded onto other accounts - and remove it from any other accounts that it may be in."
Based on what? The DMCA notice is already supposed to be binding under penalty of perjury. We see these being abused, over and over again, yet no punishment is forthcoming. Now you're saying that rather than a single instance being removed on their say so, we're meant to be OK with them removing every instance of a work from the site forever?
What if the work is changed sufficiently to change the fingerprint? Are Rapidshare now liable for not filtering the work, or are you actually going to continue working with them to do your own job? What if the work is not from an authorised account but is being used perfectly legally? What if the work is not infringing at all?
Yet again, you fail to consider the real concerns. But, coming from someone who will willingly attack the author of an article he personally requested because he couldn't read the damn thing properly, that's hardly a surprise...
[ link to this | view in thread ]
Re:
And who determines who is eligible for this "clear" account? If the company does, and makes even one mistake, you can bet they'll be sued by some legacy organization populated with more lawyers than artists. Turn it over to some "rightsholder coalition" and independents or those who are a threat to the big players will get shut out.
The whole idea of some kind of special restricted account is absurd. Most cyberlocker/cloud storage treat everyone the same - or offer everyone the same options. And I think that's what really gets to the legacy content companies - that they are treated the same as everyone else. They don't get to assert their special contracts. They don't get to be the gatekeepers anymore. Boo hoo. Go cry me a river.
[ link to this | view in thread ]
Re: Re: Re:
You consistently display your complete ignorance of how any kind of technology works.
I thought of 4 ways to trivially get around that in the time it took to click the reply button.
1) Encrypt the file.
2) Compress the file (zip or RAR it).
3) Break the file into two or more pieces that can be reassembled.
4) Trivially change the file (dropping the first or last second of a movie, for instance, would give a different hash value).
[ link to this | view in thread ]
Re: Re: Re: Two files enter...
GULAG!
[ link to this | view in thread ]
Since when can a court declare that a new technology must be invented?
[ link to this | view in thread ]
Re:
I object to one business having to take on the costs of the chosen business model of some other business. Especially when the some other business happens to be supported by a state enforced monopoly.
If these filters are so easy and effective, then what are the right holder's complaining about and why do they expect so much action from others? I don't see why they don't just make such filters themselves, and combine them with a web crawler.
The only difference in difficulty between these two solutions (individual providers who have no particular knowledge about owns what content) and the right holders (who do know what content belongs to them, and who has what licenses on it in various copyright jurisdictions around the world), is that one group is looking for an unknown number and amount of unknown and unspecified needles in a haystack, and the other are looking for a specific amount of known needles in the haystack.
So it would be easier for the right holders to do this "filtering" themselves and issue take down notices than it is for the individual service providers to look for identified stuff they don't know the form, owners, or rightful licensees of.
If the filter is so gosh darned easy, there is no excuse for right holders to not meet their own costs from their own chosen business models. Any decent web crawler will find their content, and they say the filter part is easy enough to expect other businesses to involuntarialy do it to benefit them.
They are either lazy parasites, or they know very well that the filter demands are not pragmatic efficient, and reasonably cost effective. I don't rule out that both these things are true.
[ link to this | view in thread ]
Re:
You can use a banana to rob a bank, mug someone, kidnap a monkey, or poison your neighbour kids, while some might argue the only legitimate use is "eating the thing". So what?
There is legitimate use for open file sharing, especially if there is a pay for popularity useage. There are many more content producers than there are "big content" provided/back opportunities.
There is a clear risk to the established monopolists' models in that content they might have gotten into their machine could end up independently released, and in that their audience might shrink as people look to other distributors.
They call foul and illegal and demand other businesses take up their costs of doing business. We've given them a state enforced monopoly, access to our public courts to enforce them, even criminalized infringements so that the public is paying for their business model after already giving them a monopoly.
None of that is enough.
Nothing is enough until someone other than them, from the public and rate payers at large through to individual businesses, pick up all the costs of enforcing the hugely advantageous and exceptional monopoly rights they've been handed on a platter.
Don't you think everyone else would love to have a monopoly advantage?
You know that monopolies are illegal in just about every other market? They advantage the monopolist to everyone else's disadvantage. They keep out competitors how might be more efficient, inflate prices, hold back progress and innovation and benefit no one except the monopoly holder.
To be a holder of monopoly rights in this day and age is a huge boon, and yet all these ungrateful sods do is moan, piss and whinge, demand everyone else meet the costs of enforcing their monopoly, and spend huge amounts of money derailing democracy trying to change laws to expand their monopolies further while externalizing the costs of their chosen business models to everyone else, no matter how much progress/innovation, efficiency, or how many rights, privacies, economic opportunties, and conveniences for everyone else are lost.
My opinion: These wankers are the most self entitled, self-blind, parasitic, lazy, greedy, sneaky, stuck in the past sods to walk the face of the earth since Kings were proclaiming "divine right of rule".
[ link to this | view in thread ]
Re:
You mean, apart from privacy issues? Or if you want to get technical: you mean apart from encrypte files and filenames? Yeah, that'll work.
[ link to this | view in thread ]
Re:
And with encrypted files and filenames this will be enforced how?
[ link to this | view in thread ]
Re: Re: Re: Re:
[ link to this | view in thread ]