Who should be held liable when a torrent site or other file-sharing service fails to take down infringing content following a DMCA-style takedown request?
In most cases the buck stops with the service itself, but some rightsholders would like to extend that liability beyond the sites themselves and onto hosts and other providers of critical infrastructure.
One such experiment was undertaken by Universal Music. In 2013, the German division of the label sent a takedown notice complaining about content indexed by H33T, previously one of the Internet’s largest torrent trackers. This ultimately led to the site being taken completely offline.
The problem began when H33T failed to respond to a Universal Music takedown notice demanding the removal of a link to the Robin Thicke album Blurred Lines. Faced with inaction, Universal obtained an injunction against Key-Systems, H33T.com’s domain registrar.
By order of the court Key-Systems had to end the infringement of Universal’s rights so it took the drastic decision to delete H33T.com’s DNS entries. That not only stopped further infringement but also disappeared the site from the Internet.
The case later ended up at the Regional Court of Saarbrücken and earlier this year a fairly dramatic ruling was handed down. In its judgment the Court found that a domain registrar, in this case Key-Systems, can be held liable for the infringing actions of a site if it is “obvious” that it is committing offenses under copyright law.
Lawyer Mirko Bruess from Rasch Legal, the firm representing Universal, told TF that the decision made perfect legal sense, but Key-Systems weren’t done.
“Let’s just say that this was not the final word in the matter,” their lawyer Volker Greimann said.
Key-Systems took its case to appeal but has not been successful. The Higher Regional Court of Saarbrücken has just rejected the complaint and confirmed the decision of the lower court.
“The judges state that once notified of an obvious infringement, the registrar has to take action to stop the infringement,” Bruess told TF this morning.
“[Key-Systems] argued the infringement was not ‘obvious’ because they were not in a position to make sure that the torrent on h33t.com was actually infringing and that our client owned the rights. The Court disagreed and states that the registrar had to assume that the claims made by our client were correct after contacting the domain owner (their customer) and not getting any response.”
Also of interest was the position the Court took in respect of the power Key-Systems had over its torrent site customer and the terms of service previously established between them.
“The Court also finds that the registrar was legally and technically in a position to stop the infringement. The domain owner was in a clear breach of the registrar’s TOS by running a torrent-site and not reacting to takedown notices. This gave the registrar the opportunity and the obligation to terminate the service by deleting the name from the DNS,” Bruess adds.
Finally, the Court took the view that under the circumstances taking down the entire H33T site following the complaint was not an excessive response.
“The Court argues that the termination of the (complete) site was not disproportionate, because it was in the hands of the domain owner to keep this from happening by reacting to the registrar’s notice and taking down the infringing content,” Bruess notes.
Key-Systems did not immediately respond to TorrentFreak’s request for comment, but Universal Music’s lawyer was clear on the ruling and its implications.
“The Court’s decision gives rights owners another option in the ongoing fight against the illegal exploitation of their content. We will have this in mind when looking at other domains that use our clients’ content without licensing,” Bruess concludes.