Supreme Court: RapidShare Liable For Copyright Infringement – Sometimes

enigmax
July 14, 2012
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A German court has ruled that file-hosting services can be held liable for the copyright infringements of their users if certain conditions are met. The ruling was reached in a case involving Swiss-based RapidShare and video games company Atari, after the latter accused the former of providing unlawful access to the game Alone in the Dark.

In common with many – if not all – public file-hosting services in existence today, RapidShare has some illicit content on its servers.

Of course, RapidShare didn’t put it there – its users did – but can the company be held liable when its customers commit copyright infringement via its service?

One company that believes so is video games outfit Atari. They brought a case against RapidShare in 2008 after illicit copies of its (dire) videogame Alone in the Dark were found on the Swiss-based file-hoster’s servers. Although RapidShare deleted the files in question, Atari wanted more action including a filter and other measures to ensure further user uploads were blocked.

Initially the District Court upheld the complaint, but on appeal the Higher Regional Court of Düsseldorf sided with RapidShare and dismissed the action. The Court acknowledged that the company already takes sufficient measures against copyright infringement and ruled that a filtering requirement wouldn’t be imposed.

Atari, however, weren’t prepared to concede defeat and this week the German Federal Supreme Court (BGH) announced its ruling on the case. The Court found that RapidShare could not be held liable for direct infringement but could in some circumstances be held liable for secondary infringement.

The Court said that generally file-hosters don’t have to monitor user uploads, but could be required to take action once they have been advised of a specific problem with infringement, i.e Atari’s report to RapidShare of Alone in the Dark piracy.

As we know, RapidShare did indeed take speedy action by deleting the infringing files, but the big question is should they have to go further than that to stay within the law?

According to the Federal Court, RapidShare has to take all “technically and economically reasonable precautions” (without compromising its business model) to ensure that its users do not upload Atari’s game. The Court also noted that by not installing a word filter RapidShare may have already breached the “reasonable” threshold.

One of the additional steps that the Court said RapidShare must take is to monitor a “manageable number” of third-party sites that offer “link collections” of content available on RapidShare. Should it find them indexing a copy of Atari’s game available on RapidShare it should then delete it from its servers.

However, as revealed in our earlier interview with RapidShare, the company explained that it had already “..developed a crawling technology that is constantly watching Internet forums, message boards and warez blogs for information about copyright infringement taking place on our system.”

Nevertheless, this week the Federal Court said it didn’t have enough information at its disposal to decide if such a process would reasonable for RapidShare to carry out, so it sent the case back to the Higher Regional Court of Düsseldorf – the court that previously ruled in RapidShare’s favor.

“RapidShare remains confident that the German courts will recognize our vigilance in curbing copyright abuse,” RapidShare attorney Daniel Raimer told TorrentFreak.

“We’re doing more than any provider in the industry to police our site and third-party sites to ensure that legitimate intellectual property rights are protected and that wrongdoers are denied access to our services. Yesterday’s decision was a temporary setback. We remain confident that the Higher Regional Court Dusseldorf will ultimately rule in our favor as it has in the past.”

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Pianogamer

“Reasonable”… I’ve never heard that legal argument before. How about copyright holders act “reasonable” in regards to the nature of information flow on the Internet?
- http://profiles.google.com/zerianis10 Christopher Kidwell
  
  True….. there is no way to prevent things from being shared on the internet and it’s top to stop saying that there is a way to prevent that.
  
  It might also be good to point out in the article header that this was a GERMAN court. I thought that it was the American Supreme Court at first.
  - yello
    
    dear mpaa. my home server has more copyrighted sh*t on it than rapidshare….
    and i put it all there knowingly…. hahahahahahhaha
    - Yeah
      
      technically, its impossible, unless rapidshare somehow nuked all as at one point in time, they were using 15% of the bandwidth on the internet at any given day.
    - Mental Extension
      
      More copyrighted sh*t than RapidShare?
      
      I want some of whatever you’re smoking!
  - VanceClifton55
    
    So before you save the rain forest from the parasites of your parents generation try cleaning the closet in your room.
- http://otester.myopenid.com/ PiRat
  
  Copyright shouldn’t even exist, how can you expect reasonability from anyone wanting its protection?
  - Anyone
    
    there should be some protection, mostly trademarks
    so you can’t just share the latest Justin Bieber song and claiming that you made it.
    - yello
      
      ……who in their right mind would claim that???…..
    - Guest
      
      Only the author of a creative work should have the right to sell it.
      
      If you want to use a creative work for commercial purposes, then you need to work out a deal with its author.
      
      Nobody should be allowed to take credit for a creative work that somebody else made.
      
      Creative works enter the public domain after a year or so, like they were fucking supposed to before corporations lobbied politicians for unlimited copyright extensions.
      
      That, right there, is what intellectual property laws should be reduced to.
    - Ogra
      
      Guest, your idea of intellectual property laws still has too many infringements on property rights. It is the natural right of anybody who has a copy of an intellectual work to produce more copies and sell them at their own discretion. There is absolutely no reason for the government to say that someone can’t sell their own property to anyone they wish (and any copies that the person has does count as their property, not the original author’s property.)
      
      Nobody but the original author should be able to claim that they produced the original copy, because that is fraudulent, but anything short of such a claim should be legal.
    - Guest
      
      “It is the natural right of anybody who has a copy of an intellectual work to produce more copies and sell them at their own discretion. ”
      
      Err… Are you arguing in support of commercial piracy?
    - Fredrika
      
      > “Err… Are you arguing in support of commercial piracy?”
      
      No, he’s simply stating a fact about what the natural starting point is. The copyright monopoly moves society away from the natural rights that goes along with peoples property rights. Whether or not society should suppress that natural right with the copyright monopoly is a completely different topic, but before that topic can even be discussed, one must understand the starting point, and what’s natural vs. unnatural
    - Ogra
      
      To put it simply, yes. One of the most important tenants of society is individual property rights. This means that so long as I do not use my property to cause harm to others, I can do whatever I want with it. Any copy of a cultural product is my property, and no one else’s. It does not belong to the original creator, or the company that produced the copies, or the record label that licensed the copies, it belongs to me. I have the means to make copies, and I have the right to sell my copies because they are my property, so I have the right to engage in commercial piracy if I so choose.
      
      I should note here that I do not engage in commercial piracy, because I find it to be morally distasteful, but I find it much, much more morally despicable for the government to destroy property rights and make such an act illegal. Just because we find something morally distasteful does not mean it should be illegal. There must be a more pertinent reason to damage property rights then simply that we do not approve of what someone else does with their property.
      
      The only factor of intellectual property we should preserve is the right to acknowledgement as the original author, because anyone claiming otherwise would be engaged in fraud and deceit. Someone who simply sells it without claiming original authorship is not engaging in something that should be illegal, even if it is not morally defensible.
      
      If your reason for supporting piracy is simply disliking record companies (an assumption, but one that has been correct about other people in the past), then I see how you may not agree with me. I support piracy because it is the only position that preserves individual liberty, and commercial piracy is a part of that liberty that we must defend, even if we disapprove of it.
    - Ogra
      
      @flphpp:disqus
      
      That’s true, but I also intended to go a bit further, and argue that there is no pertinent need or justifiable reason to challenge property rights in the legal status of commercial piracy. I commented some on this in my other post above this one, so I will not discuss it more in this one.
    - Fredrika
      
      > “That’s true, but I also intended to go a bit further, and argue that there is no pertinent need or justifiable reason to challenge property rights in the legal status of commercial piracy. I commented some on this in my other post above this one, so I will not discuss it more in this one.”
      
      I’m sorry, i didn’t even see you original comment, i only read the quotation in Guest’s reply, which wasn’t even a reply to you, but to Anyone.. =)
    - annonymously annoyed
      
      i’m with you on rhe jb front, that guys music shouldnt be made let alne shared. 4the rest… no
- guess
  
  ie rapid share loose in the German courts, kick it up to the EU courts, German courts are notoriously biased in the favor of copy right holders and not the individuals etc, Germany you get accused of copy right infringement YOU have to prove your innocents not the copy right holder to prove your guilt. go figure.
Anyone

“reasonable” for the MAFIAA means “expensive enough to put you out of business”
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http://torrentfreak.com/ Rob8urcakes

Aaahahahahahahah, Rob slaps floor whilst LMFAO at Andy/enigmax saying, “[Atari] brought a case against RapidShare in 2008 after illicit copies of its (dire) videogame Alone in the Dark…”

For anyone who doesn’t quite see wtf I’m laughing at it’s simply the word “dire”.
Fecken funny as feck Andy. Thanks :)
- Yobo
  
  You on crack bro?
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http://profiles.google.com/zerianis10 Christopher Kidwell

What will they do when these sites block Rapidshare’s tool? What then? Bottom line is for every ‘crawler’ there is a countermeasure against that.
RandoMotts

lol, so the Supreme Kangaroo Court belches lol.

Need-Privacy.tk
Master

Alone in the Dark? …REALLY ATARI?
- http://profiles.google.com/zerianis10 Christopher Kidwell
  
  Yeah, that if it is the one I am thinking of sucked royally. It should have never been released in the form that it was released in.
  - Anyone
    
    that’s why they sue, it flopped, now they try to sue anybody who seems to get money to break even
    
    see also: Hurt Locker
Zato77

This isn’t a victory for the MAFFIA, even if it sounds so on first read. The “supreme court” (BGH) only confirmed that RS must apply economically viable measures to prevent copyright infringement. But the Düsseldorf court already ruled that RS is just doing that. There’s no reason why the court should revise it previous judgement now…
Pingback: Supreme Court: RapidShare Liable For Copyright Infringement – Sometimes | Arcade Classics
Bag0

It is funny that these corporations think that with every download they loose a sale. Download stats equate to giant heaps of gold that never arrived in there pockets . I checked out the price of Alone in the Dark on Amazon it sells for 4.74 cents that is not a lot of money . Chances are if that is over your budget your poor or you just wont pay for it .
Could also be that you live out of the licensing zones that you want to buy the game but you cant . You cant squeeze blood from a stone Atari and if you want more money from your games put in place a licensing model where people from all over the world can play it at the same time .
RIAAtarded

The Court also noted that by not installing a word filter RapidShare may have already breached the “reasonable” threshold….. OK a word filter isn’t practical and should never be used. Just because atari owns a game called alone in the dark doesn’t mean they own it as a sentence. We start that BS where does it end you can’t copyright language. If you make me switch to gestures instead guess which finger I’m holding up.
Neil

‘Reasonable’ can be interpreted differently by differing people making it completely useless in a legal ruling and the judge should have known that.
Or is he deliberately leaving the door open so his pals in the MAFIAA can file new cases?
- Guest
  
  Reasonable is a legal term, at least in the USA. This is the problem with copyright and such, it is wide open to a single judges interpretation.
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http://nejtillpirater.wordpress.com/ Nejtillpirater

“The Court said that generally file-hosters don’t have to monitor user uploads, but could be required to take action once they have been advised of a specific problem with infringement, i.e Atari’s report to RapidShare of Alone in the Dark piracy.”

File-hosters should also be liable if their moderation, DMCA methods etc. are not efficient enough. It’s evident that the top reported domains according to Google Transparency Report are illegal. The DMCA policy of e.g. FilesTube is a joke. The DMCA policy is just a facade.

All other companies must obey the laws, not just falsely stating that the do.
- Anyone
  
  there should be no moderation, that’s against privacy laws
  
  the MAFIAA is welcome to send DMCA takedowns for specific files, anything more is overkill
- Guest
  
  “efficient enough”
  
  Fuck that. There is no such thing as “efficient enough” in the eyes of the MAFIAA, as proven by its many backstabs of hosts that bent over backwards to cooperate with it. Furthermore, file-hosters shouldn’t be held liable for the actions of their users in the first place. Other service providers aren’t, but in a massive double standard, they are… Hmm, maybe that’s because a corrupt cartel is bribing politicians to go after them.
  
  “obey the laws”
  
  *snicker*
  
  Laws aren’t immutable, son.
  - http://nejtillpirater.wordpress.com/ Nejtillpirater
    
    What would you say if a shoplifter was caught in action and that you then had to say “OK, promise that you stop your shoplifting within a week, then you’re free to go”. This is what the fake DMCA policies of some cyberlockers are worth.
    - Fredrika
      
      > “What would you say if a shoplifter was caught in action and that you then had to say “OK, promise that you stop your shoplifting within a week, then you’re free to go”. This is what the fake DMCA policies of some cyberlockers are worth.”
      
      As you have been made fully aware of many times before there exists absolutely no similarities whatsoever between shoplifting, which is the permanent appropriation of someone else’s property, and an accusation of an alleged intrusion into a legislative monopoly, which is an act that is performed with one’s own property, that the cyberlocker owns, so the values of the two completely fundamentally different acts aren’t comparable in any way, and the only reason you brought that illogical and meaningless comparison up was a desperate attempt at resorting to yet another dishonest logical fallacy, as in guilt by association.
      
      In addition to that your entire comment was also yet another straw-man argument where you completely avoided responding to the actual argued point.
    - Guest
      
      “shoplifter”
      
      File-sharing doesn’t involve stealing, so your shoplifter analogy doesn’t apply to it. Try again.
    - http://nejtillpirater.wordpress.com/ Nejtillpirater
      
      “File-sharing doesn’t involve stealing, so your shoplifter analogy doesn’t apply to it. Try again.”
      
      No illegal file-sharing is not stealing but very similar to stealing. It’s not what you call it that’s important, it’s the result. The result of illegal file-sharing is very similar to stealing to the copyright owner. It’s not a loss of 100% of the value but in most cases a loss of e.g. 25% of the value, based on the Mediavision interviews of downloaders.
      
      The average loss may be another, 10%, 20%, whatever, but it’s not 0% like the pirates assume. And definitely not 100% like the pirates false accuses the “media industry” of claiming (some companies may have tried this but it’s still wrong, just as saying that it’s 0%).
    - Fredrika
      
      > “No illegal file-sharing is not stealing but very similar to stealing.”
      
      As you are fully aware of there are no similarities between permanently appropriating someone else’s property and performing an intrusion into a legislative monopoly by using one’s own property.
      
      > “It’s not what you call it that’s important, it’s the result. The result of illegal file-sharing is very similar to stealing to the copyright owner.”
      
      No. Absolute no property whatsoever is permanently appropriated from any owner as a result of an infringement.
      
      > “It’s not a loss of 100% of the value but in most cases a loss of e.g. 25% of the value..”
      
      Stealing equals 100% loss of property. Whether or not that property has any value is completely irrelevant. An infringement into a monopoly equals 0% loss of property. Value is not the issue. If value was the issue arson or vandalism could also be considered very similar to stealing according to your flawed logic, because it affects the value of property, but you don’t run around calling arson and vandalism for stealing now do you?
      
      Possibly being able to sell less as a result of an infringement does not equal loss of property, nor loss of any value which you previously had in your possession. Expectation to sell or belief of a possible sale is not a value. And even if it was so, the lost sale is myth which no scientific evidence has ever been able to corroborate.
      
      > “..based on the Mediavision interviews of downloaders.”
      
      You mean the poll which was conducted by an profit seeking company, the poll which was ordered by a profit seeking company, which had an interest in a certain outcome of the poll, the poll which was so flawed and didn’t stand up to any scientific scrutiny, which was the reason why it was never published?
      
      As iv’e said before, only a complete idiot would reference such a poll, believing it holds any value at all.
      
      > “The average value may be another, 10%, 20%, whatever, but it’s not 0%..”
      
      This is guessing from you, that it isn’t zero, but in reality it could indeed be zero and it could also be a value on the other side of zero.
      
      > “..like the pirates assumes.”
      
      The only one who assumes things here is you. You assume that the value has to be negative, and that it can’t be zero. This is a rather astonishing ability you display, in the same sentence that you accuse someone else of doing a certain thing, it’s in fact you yourself that does it in the very same sentence.
      
      > “And definitely not 100% like the pirates false accuses the “media industry” of claiming (some companies may have tried this but it’s still wrong, just as saying that it’s 0%).”
      
      Falsely? Again you deny reality(which raises the question where you live..). On many many occasions the industry have indeed claimed that the loss is 100% for every single download, they have submitted such numbers on hundreds of occasions to governments and courts all over the world during the last 15 years. Do you deny this? The only false accusation here is the one you just put forward against the pirates.
- Fredrika
  
  > “File-hosters should also be liable if their moderation..”
  
  They are not allowed to look at their customers flies. That would be a breach of privacy which is illegal, so the real question is why you encourage crimes?
  
  Secondly, moderation would be meaningless because the alone fact that an hosted file is copyrighted does not decide whether or not an actual infringement takes place.
  
  > “..DMCA methods etc. are not efficient enough.”
  
  That’s your personal subjective wish-based opinion, an opinion which no evidence whatsoever supports. The courts however, which are way more experience in coming to though through conclusions on these matters has come to the completely opposite conclusion than you. So why should anyone listen to your ignorant opinions, which just happens to completely ignore all the facts, and the law?
  
  > “It’s evident that the top reported domains according to Google Transparency Report are illegal.
  
  A conclusion from someone who clearly doesn’t understand the judicial system and in addition to that also encourages crimes. According to the judicial system however, all cyberlockers are considered fully legal, which is the relevant point.
  
  > “All other companies must obey the laws, not just falsely stating that the do.”
  
  More unproven accusations that completely ignores all the facts.
- Guest
  
  Hello, Nej! While you’re on the subject of following the law, care to comment about lawyers who demand settlement fees from randomly generated individuals while threatening to sue but not actually intending to?
  
  I believed you said that companies must obey the laws and not just falsely state that they do?
  You haven’t answered our questions yet, Nej!
  - http://nejtillpirater.wordpress.com/ Nejtillpirater
    
    Are they really randomly generated? Threatening to sue illegal downloaders seems to be correct, as long as you’re convinced about the illegal downloading.
    - Fredrika
      
      > “Are they really randomly generated?”
      
      Are you not able to read? He clearly stated that they were in his example, which was the one he asked you to comment on.
      
      > “Threatening to sue illegal downloaders seems to be correct, as long as you’re convinced about the illegal downloading.”
      
      Ok then, you believe threatening an Internet subscriber is ok(because someone might possibly have committed an infringement), even though no intent to sue actually exists, and even though no economical harm has been proven.
      
      In other words, you approve of extortion of possibly innocent people. You do indeed seem to have the same moral as those involved in organized crime has.
    - Guest
      
      Wow, Nej! Not sure if wilfully ignorant, incredibly obtuse or just plain copyright maximist. Are you sincerely not aware of how often copyright holders get the wrong person? The RIAA kicked off a decade of going after people, and guess what? Ten years of settlement letters, and they only manage two “hits”, followed by a ton of misses. What kind of respectable person thinks that this sort of error rate is completely acceptable?
      
      Oh, and considering your perspective on how this issue should be dealt with, tell you what. I am convinced that you are doing something illegal. You don’t have to defend yourself; you’re not given a chance to – what matters is that I am convinced that you are doing something illegal. I am now threatening to drag you to court where you must prove your innocence and I don’t have to prove anything – but if you pay me several thousand dollars I can make this all magically go away. Just give me all your private information so I can use it in the future for another charge that might stick – er, I mean, because it’s all offical-ey and law-ey and stuff and you wouldn’t want to go against an interpretation of the law now, would you? That’s fair to you, right?
- Me
  
  yes, the tube’s dmca policy is just a facade, and that is good. all copyright should be abolished.
Mafiaacirclejerky

Why don’t we just send DMCA takedowns on their site just the same way
they do for everyone. Let’s see how circleJerky the Mafiaa feels then.
- PelouzeTF
  
  Good idea, you should send a legally binding claim where you swear under penalty of perjury, that you hold the copyrights on materials that you don’t.
  
  You sir must be a genius.
  - Anyone
    
    lol, perjury
    if that actually meant something most of the MAFIAA would long be sued for all their false takedown notes
    
    but nothing happens, they continue to censor the web to their liking
  - Guest
    
    You mean like the time when the MPAA claimed that 45% of all files online were infringing, and later admitted it was probably 15% – with an error margin of 300%?
    
    Do you get the industry’s white chocolate all over your face each time you type here, “independent producer”?
    - PelouzeTF
      
      What has a 2005 study got to do with file-sharing today ?
      
      And what do independent artists have to do with the Mpaa or RiAA ?
      
      Do you want a tissue for that splooge on your face?
    - Guest
      
      What do independent artists have to do with the MPAA or RIAA? Ordinarily, they shouldn’t have anything to do with them at all. But whenever new laws are pushed out to defend the RIAA/MPAA’s special interests or people get sued in their dragnet litigation tactics, independent artists (not all, mind you, just those who fellate the RIAA/MPAA’s phallus like you) jump to their defence.
      
      For people not affliated with official labels you do spend an awfully huge amount of time and effort defending them. Even though it’s been shown, time and time again, that they cannot be trusted with statistics.
      
      The splooge is on your face, “independent” producer.
    - PelouzeTF
      
      ”
      What
      do independent artists have to do with the MPAA or RIAA? Ordinarily,
      they shouldn’t have anything to do with them at all. But whenever new
      laws are pushed out to defend the RIAA/MPAA’s special interests or
      people get sued in their dragnet litigation tactics, independent artists
      (not all, mind you, just those who fellate the RIAA/MPAA’s phallus like
      you) jump to their defence.
      
      For people not affliated with official labels you do spend an awfully
      huge amount of time and effort defending them. Even though it’s been
      shown, time and time again, that they cannot be trusted with statistics.
      
      The splooge is on your face, “independent” producer.’
      
      What you just typed is borderline retarded.
      
      Apparently according to you, independent producers (who although not affiliated with the MPAA or RIAA) can’t choose to support certain aspects or actions of those groups, or I’m assuming anyone else with similar views in those industries even though their interests are naturally aligned.
foff

I will say it again we cannot score significant victories in court. The victories need to come from legislation and the court of public opinion. The ultimate goal here is to pry some money out of the hands of rapidshare because it would be a waste to sue any uploader. Eliminate the possibility of large judgements for extended parties and you eliminate cases like this. Pass legislation that limits the liability of third parties. Right now the mafiaa is exploiting this to the max. In fact they are trying to carry it to fourth parties like vpn’s and isp’s. How far down the chain do they intend go I don’t know. Obviously as far down as the courts will permit it.

In my opinion a digital copyright ought to last no more then a year or two. Most downloading is for material that is a year or two old. The original purpose for a copyright was not to protect the creator but to protect the publisher and give him enough time to distribute the book or whatever. Since distribution on the internet is instantaneous how long does a publisher need protection? Since all costs can be recouped in a matter of days a year or two is plenty.

This compromise would be better than nothing. We could download our asses off on anything over one or two years without fear. The mafiaa and the copyright troll lawyers could then concentrate efforts on abusers where it mattered.
Guest

Copyright think should be limited to one year, text what says “when all authors, writins etc area dead for 75 years products or art etc is public domain” this whole text should be removed and replaced that all products etc. will lose copyright protection after 1 year then anyone can copy it (homever its does not mean that author has to give blueprints how to make same think or give source codes, only think that product or art item loses its copyright protection). This kinda think would be acceptafull it would offer fair business model those wish to use and right holders would get 1 year safe time(meaning they could sue anyone who trys copy it without permission).
cSMG

The real crime here is that someone actually wanted to play Alone in the Dark. That game fucking blows.
Jentai

Sooo, if I work for Atari and commit a murder, and the gun I used to do said murder was purchased with the money I make from working in Atari, does that mean that Atari is an accessory to the crime? I better get a job in the MAFIAA then.
E2024884

Get a copy of the first amendment, rename it alone in the dark, have rapidshare’s word filtering delete it, and sue whoever needs suing, profit, for their fucking stupidity, and lack of of forsight.
No its not right, but oh so easily possible, without intent
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http://twitter.com/Anime4PSP Anime 4 PSP

Ololo, they bent over so much, yet still can be liable of copyright infringement
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Kiba

ATARI SON OF THICH!!
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http://getfreecarinsurancequotes.info/ Bettye Darling

The court that previously ruled in RapidShare’s favor.
yuji

tinyurl.com/cyk9xz2
Share 2k

Share your files at http://www.share2k.com with unlimited bandwidth and super speed.

regards
proPutLocker

What about the privacy of the Uploader? Take PutLocker for example, they respect there users privacy and refused to bow down to PayPal’s request to give them backdoor access into the Uploaders accounts. I for one do not upload porn, and in my opinion it is PayPal’s loss

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Supreme Court: RapidShare Liable For Copyright Infringement – Sometimes

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