Court: ISP Not Responsible When Subscribers Infringe Copyrights

In a case brought by EMI against one of Germany's largest Internet service providers, a court has ruled that the ISP cannot be held liable when its subscribers infringe copyright. Music giant EMI wanted the ISP to block a certain file-sharing site but the court decided otherwise and dismissed the case.

After calls to the Russian host of a file-sharing site to shut down the service failed, in early 2010 a leading music label launched legal action against one of Germany’s largest ISPs.

Although the identities of the plaintiff, defendant and file-sharing site are redacted from court papers, the case reference (28 0 362/10) reveals a lawsuit between EMI Music and ISP HanseNet Telekommunikations.

EMI argued that HanseNet was involved in infringing its copyrights by providing Internet access to subscribers using a file-sharing links site.

To this end, the label argued that the ISP, Germany’s 4th largest, should stop providing subscriber access to the service by way of DNS blocking. Furthermore, to counter the site changing its URL or IP address to circumvent any court ordered injunction, EMI also asked for the site’s current and future IP addresses to be blocked.

HanseNet argued that as a mere conduit of information as detailed under the E-Commerce Directive 2000/31/EC, it is not responsible for the actions of others using its services.

The ISP also argued that infrastructure for carrying out such blocking isn’t in place and, in any event, such blocks are easily circumvented making it technically impossible for it to comply fully with any banning order.

Furthermore, even if a block could be carried out effectively, HanseNet said that such action is not required by law. The ISP argued that the blocking of a website constitutes a substantial interference with the fundamental right to freedom of information, and without legal basis could not be carried out.

In its recent ruling, the Cologne Regional Court decided that as an ISP HanseNet is not liable for the infringements of its customers. Describing the lawsuit as “unfounded”, the Court dismissed the case.

Christian Solmecke, a lawyer heavily involved in file-sharing cases at the Wilde Beuger Solmecke law firm, told TorrentFreak that in his opinion the decision is correct.

“The defendant is only a technical provider. He is not allowed to track the traffic of its users. The judge said, that looking into the traffic stream would be an infringement of German communication law. Furthermore the court stated, that blocking a domain is ineffective and therefore useless,” he explains.

Solmecke says that the Cologne Regional Court usually makes decisions in favor of copyright holders so the change in this case is welcome.

“We will try to use some of the argumentation of the court in our actual file-sharing cases. Especially we will try to convince the court, that parents have no chance to control the surfing behavior of their children,” Solmecke concludes.

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