Rapidshare Declared Legal (Again) In Germany, But With A Bizarre Requirement To Monitor Other Sites

from the how-does-that-make-sense dept

A few weeks back, there were reports floating around claiming that a high regional court in Germany had ruled against Rapidshare, which some thought went against earlier rulings that had found the company’s model legal in both Europe and the US. Considering that Rapidshare is quite frequently compared to Megaupload (despite some significant differences), these cases are pretty important. When I saw that announcement a couple weeks ago, I also heard from some people in Germany who said to wait until the full ruling was out before assuming that the news making the rounds — which was being pushed by the entertainment industry — was accurate. Indeed, now that the details have come out, the ruling is much more mixed, and is mostly a victory for Rapidshare. It effectively says that Rapidshare’s business is legal — and this comes from a German court that has a history of suggesting that service providers need to be copyright cops.

In this case, that is the one questionable part of the ruling. While the court does not say that Rapidshare needs to police uploads, it does say that the company needs to police external links to the site and then disable the files if they are obviously infringing. This doesn’t make much sense if you think about it. It seems odd that Rapidshare should be forced to monitor what third party users on fourth party sites are doing, and then take action based on that. But, it appears the company may appeal that part. And, for the time being, a ruling that acting as a hosting provider/cyberlocker is legal is an important and useful ruling, in a court not known for handling copyright cases very well.

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Comments on “Rapidshare Declared Legal (Again) In Germany, But With A Bizarre Requirement To Monitor Other Sites”

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45 Comments
:Lobo Santo (profile) says:

C-Balls.

The court apparently just wants Rapidshare to implement the new “Crystal Ball”(tm) network modules.

The CBNM’s are, frankly, amazing. They will tell your system how much traffic it will have, where that traffic is going to come from, and whether or not said traffic is going to be for infringing purposes.

The present modules only forecast these thing about 3 minutes into the future–which is plenty of time to magically parse and remove all incoming connections which will be for infringing purposes.

Also, did I mention they feature temporal paradox absorbing crumple zones? Fascinating modules, worth every monetary unit spent upon them.

Tor (profile) says:

Does anyone have a link to the ruling? I find the obligation to monitor third-party sites really strange and would like to read the court’s own words about this.

This is what the EU E-commerce directive article 15 says:
“1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.”

To me it seems that the german court has found that there is “a general obligation actively to seek facts or circumstances indicating illegal activity”, which runs counter the meaning of article 15.1 above.

Anonymous Coward says:

Actually, it seems like the ruling is more this:

Rapidshare must monitor what pages on it’s site are getting visited, and then check those pages to see if the material is infringing. The best way to do that is to look at the referring sites, to see how the file is linked, etc. Example, if the link is from “DVD ripz” and it’s called “Avatar full dvd rip in german”, then you can pretty much figure out it’s infringing.

Basically, the court ruled that the business model in and of itself is legal, but without constant vigilance as to how the service is used, they would be liable.

Another AC says:

Re: Re:

“Example, if the link is from “DVD ripz” and it’s called “Avatar full dvd rip in german”, then you can pretty much figure out it’s infringing.”

Except not. I can have a billion links named “Avatar full dvd rip in german”, not a single one is actually “Avatar full dvd rip in german”.

Your logic is based on assumptions which are easily proven wrong.

PaulT (profile) says:

Re: Re:

“Example, if the link is from “DVD ripz” and it’s called “Avatar full dvd rip in german”, then you can pretty much figure out it’s infringing.”

…because nobody can possibly give the files cryptic or misleading names, and the corporations have no history of suing based on otherwise legitimate filenames or products?

For example, there are other products called Avatar (including public domain movies) and legal reasons to distribute DVD rips. Yeah, you can assume that something with that name *must* be infringing because there happens to be a big name Hollywood movie with that name, but there’s no way for you, nor Rapidshare, to know for sure without manually examining the file. There are probably thousands of legitimate files that could be confused in this way, even if your example seems a little obvious.

“Basically, the court ruled that the business model in and of itself is legal, but without constant vigilance as to how the service is used, they would be liable.”

Out of interest, can you name another business model that’s legal, but where the service provider is forced to provide this level of vigilance for anything that doesn’t directly risk physical harm? I honestly can’t think of one.

Anonymous Coward says:

Re: Re: Re:

What is amazing Paul is just how much of an apologist you are for illegal behavior. You are so willing to accept all sorts of bad things, for the occasional good use.

“because nobody can possibly give the files cryptic or misleading names, and the corporations have no history of suing based on otherwise legitimate filenames or products?”

Well, let’s say this: if you are stupid enough to try to sell a bag full of sugar to someone, and call it cocaine, you are guilty (in the US anyway) of distribution of drugs, even if there are no drugs. Clearly, if people are trying to hide something, it might be worth checking out the file to see.

“there are other products called Avatar (including public domain movies) and legal reasons to distribute DVD rips. “

yes, and opening the file and seeing what is inside would be a good idea. It’s not hard to figure out, takes only a minute to do. After that, you can digitally finger print the file, and make it easier to find again in the future.

Actually looking at the content of the file is probably a very good idea, don’t you think?

“Out of interest, can you name another business model that’s legal, but where the service provider is forced to provide this level of vigilance for anything that doesn’t directly risk physical harm? I honestly can’t think of one.”

Any retailer. You have responsiblity for the goods in your store. If you have all stolen or pirated goods, you have liablity.

Night clubs: The laws say 21 years or older, and you are responsible to check 100% of patrons entering, and can be fined or lose your liquor license if you don’t comply.

I could go on, but you get the idea. Almost every business has certain liablities to avoid selling illegal products or breaking the law.

John Fenderson (profile) says:

Re: Re: Re: Re:

What is amazing Paul is just how much of an apologist you are for illegal behavior.

Wait, what? Where is Paul being an apologist for illegal behavior?

You are so willing to accept all sorts of bad things, for the occasional good use.

You are so willing to trample on the rights of innocent people to “solve” a perceived problem that can be addressed in a more effective way that doesn’t trample on innocent people’s rights.

If innocent people must be harmed to address a societal problem, then the societal problem must be so great that failing to solve it causes more harm than the solution. Otherwise the more moral position is to allow the illegal behavior to avoid harming the innocent people.

It never ceases to amaze me how defending innocent people against an assault on their rights is so often characterized as defending piracy.

PaulT (profile) says:

Re: Re: Re:2 Re:

“If innocent people must be harmed to address a societal problem, then the societal problem must be so great that failing to solve it causes more harm than the solution.”

This is part one of the problems here. None of these people have ever shown a direct link between “piracy” and lost money. At best, we have correlations that are easily explained by taking into account numerous other factors with piracy as only a small part, and even then most studies show a correlation that the biggest “pirates” are often the biggest spenders to begin with.

Even if they could show a direct link, it would still be arguable that a free market, free speech and open communications are far more important than their profits anyway. The things he insists on can only have a chilling effect on legitimate files, and will almost certainly have no effect on the overall level of piracy whatsoever, let alone have any effect on their profits. It’s telling that the only example he could think of in his first post was the most financially successful film in history, yet the various legitimate files that could have that name never occurred to him for a second, nor did the ease in which Rapidshare could be misdirected and still held liable.

Anonymous Coward says:

Re: Re: Re: Re:

What’s amazing is you think all the files are named so blatantly. Some are. Most private sites rename them though. Either random number/letters, or humorous little joke titles. Some sites even reward the best joke names. If this is the new rule of law, well everyone will just start obfuscating things slightly.

Or what about the old ToS dodge? “By access this page you confirm that you are in no way associated with Rapidshare…blah blah blah”.

Anonymous Coward says:

Re: Re: Re:3 Re:

How from a legal perspective is the name of the file given any evidence that it is an infringing one. How does that in any way convey to Rapidshare that the person who uploaded it was not licensed to distribute it. Is Rapidshare privy supposed to magically know exactly who the content provider has negotiated distribution details with or is there some secret naming convention that is the industry has agreed upon and informed Rapidshare of that any files uploaded HAVE to follow in order to be considered licensed?

techflaws.org (profile) says:

Re: Re: Re:3 Re:

What sucks is a clueless guy like you talking about stuff he knows jack about. Those boards use random names and also encrypt the file so you can’t even read the filenames of what’s inside. “Dvd rip site” won’t show up as the refferer cause they also use link anonymizers (which certainly are next target for your ilk, right?).

John Fenderson (profile) says:

Re: Re: Re:3 Re:

YOu guys are working too hard to find ways to justify not checking. That sucks.

Not so. We’re working hard to make sure that the appropriate people are doing the checking. Rapidshare is certainly not the appropriate party to do this, firstly because they are being saddled with a burden that is onerous despite not engaging in illegal activity, and second because they don’t even have enough information to do it in a useful way.

Rapidshare can’t possible know what’s infringing and what isn’t. The copyright owners are the only ones who have that information, and even they get it wrong an awful lot.

Ruben says:

Re: Re: Re: Re:

I’m really not seeing how any of this is rapidshare’s responsibility. For all you talk about the ‘obviousness’ of whether or not a file is infringing, it’s actually pretty gray. Rapidshare has no idea what content is infringing or has been properly licensed; to assume that they’re infringing with no proof or opportunity for the uploading party to show license is exactly the wrong way to go about this.

As a service provider, rapidshare bears no responsibility for the content uploaded to their site, just as Mike Masnick bears no responsibility for the content of this comment. If James Cameron spots what he believes to be an illegal copy of Avatar on a website, he should contact the website’s owner to have it investigated and possibly removed.

The retailer argument doesn’t work. It’d be more like a consignment shop or pawn where they took in stolen goods.

Anonymous Coward says:

Re: Re: Re: Re:

“Actually looking at the content of the file is probably a very good idea, don’t you think?”

Sure, you want to pay for enough people to open and preview the hundred of thousands of files that get linked to daily?

Like you said its only a minute, so you only need a few thousand 24 hour employees.

Rikuo (profile) says:

Re: Re: Re: Re:

“yes, and opening the file and seeing what is inside would be a good idea. It’s not hard to figure out, takes only a minute to do. After that, you can digitally finger print the file, and make it easier to find again in the future.”

This is the most ridiculous part of your statement. For this to be true, Rapidshare would have to hire THOUSANDS of people, at an exorbitant cost to themselves, to check the hundreds of thousands of files linked to on RS servers daily. First, this violates the privacy of the uploaders (you can’t look at these files without a court order or law enforcement order).
Second, if it’s only “going to take a minute”, the employees would then have to have an encylopedic knowledge of all digital content everywhere, so that a minute’s look is all it takes to determine what the content is. Not only that, but within that minute, they would also then have the knowledge of whether the file is infringing or not? How can they tell? There is such a thing as the public domain, as legit uploads, Creative Commons.
Third, RS can’t alter the files, especially not to add a digital watermark, not without permission of the people who uploaded the file. Not only that, but you clearly don’t know of the immense processing power required to do this (add watermarks to millions of movie files). Fourthly, you have a double standard. If RS were to watermark files, would that then make it okay for RS to keep hosting the files? Are the files illegal or not?!?

PaulT (profile) says:

Re: Re: Re: Re:

“What is amazing Paul is just how much of an apologist you are for illegal behavior. You are so willing to accept all sorts of bad things, for the occasional good use.”

Oh dear, you’re that asshole, are you? Sorry, I mistook you for an intelligent reasonable human being. My mistake.

Yes, we should live in a police state where every communication of any kind must be monitored in case some might lose some money (never proven) and 3rd and 4th party liability must be enforced at all costs. After all, everything can be used for something potentially harmful. Physical pirated copies are still sent through the mail system – why don’t you attack them for not opening and examining every parcel?

“Well, let’s say this: if you are stupid enough to try to sell a bag full of sugar to someone, and call it cocaine, you are guilty (in the US anyway) of distribution of drugs, even if there are no drugs.”

What if you sell a bag of sugar and without your knowledge it has cocaine? What if you own a warehouse and you have millions of bags of sugar and someone’s hidden cocaine inside one of them? What if you own storage lockers and someone tried storing something illegal in one of them? Are you still liable? What is it with assholes trying to compare everything related to digital copies to drugs and child porn? don’t have any arguments that can’t have any point without fallacious appeals to emotion?

“Any retailer. You have responsiblity for the goods in your store. If you have all stolen or pirated goods, you have liablity.”

Unless I’m mistaken, there are safe harbours if, for example, the retailer uses a reputable supplier but inadvertently gets counterfeit goods on their shelves. They also don’t have to open every box to ensure that the contents within match the described contents. That would seem… silly, not to mention unworkable.

“Night clubs: The laws say 21 years or older, and you are responsible to check 100% of patrons entering, and can be fined or lose your liquor license if you don’t comply.”

For the purposes of selling alcohol, which can cause physical harm is not used correctly, something more like to happen with younger people. Unless I’m mistaken, the 21 age limit is for the liquor licence, and not required if physically harmful substances are not sold.

Do you have any examples that match my question, or is this where you palm me off with half-assed accusations and fantasy strawmen instead of addressing my points?

Gwiz (profile) says:

Re: Re:

Basically, the court ruled that the business model in and of itself is legal, but without constant vigilance as to how the service is used, they would be liable.

If that’s true, then that is an asinine ruling really.

I know that real world analogies don’t translate well online, but this is akin to saying that a physical storage unit rental company must monitor every single item anyone places in their rented units to make sure no one is storing stolen property. This would include opening up all boxes stored in the unit and pawing through it like the TSA would.

If it isn’t acceptable in the real world, why would it be acceptable online?

Anonymous Coward says:

Re: Re: Re:

If they knew that someone was using a locker to store illegal drugs, and were getting hundreds of visitors a day coming to buy drugs, and turned a blind eye to it, then they would assume at least some liability.

You cannot ignore everything and act like nothing is going on, especially when it is so blantant.

Anonymous Coward says:

Re: Re: Re: Re:

? UPS/FedX know people use their service for illegal drugs are they liable for the drugs they deliver? Should the open ever package? Should they have to employee hundreds of thousands of drug sniffing dogs to check every package?

And if you think that people are not exchanging drugs in transit building rental lockers you are a fool. But no one can afford to have security looking over everyone’s shoulder when they open a locker. If they get a tip they look into it and they have the camera for records if they need to see who was using a locker, which is exactly how rapidshare works. They respond to takedowns and keep logs.

Gwiz (profile) says:

Re: Re: Re: Re:

You cannot ignore everything and act like nothing is going on, especially when it is so blantant.

Well the problem is that it’s not as obvious as you make it out to be. Infringement is based on a how file is used. Like I’ve said many times before – the same file could have both legal and illegal uses. Without additional knowledge beyond a filename it is impossible to know. But you somehow can magically look at a file and say “It’s 100% infringement”.

And your response above indicates some knowledge of illegal drug use for liability. So how exactly would Rapidshare know?

TtfnJohn (profile) says:

Re: Re: Re: Re:

So, obviously, in your mind, any and all file lockers, cloud computing and other similar services exist only to host or link to or rip or rip off infringing material.

What the court says is that Rapidshare doesn’t have to check all the files stored there but only the links to external sites. So it’s hard to draw a comparison to a crack house try as you might. (The existence of which is routinely ignored by both neighbours and police until something like a shooting or murder occurs.)

This is similar to saying that, back in the days when they were common as dirt, that the telco was responsible for the number of drug deals, hooker meet ups and bootlegging done from a given pay station.

Everything is blatant if it’s in your interest to see that activity in a location even if there’s very little of it going on just as nothing is going on there if it’s your interest to regard it that way. (Back to the crack house example again. A neighbour isn’t going to report it if law enforcement isn’t going to bust it totally and they almost never do. It would just be far too dangerous to report it.)

You want to see infringement/piracy/”theft” everywhere you look on the Internet so you see it. We’re used to that from you by now.

If you’d just kindly weigh anchor and troll another site I think we’d all appreciate it!

Tor (profile) says:

Re: Re:

“Rapidshare must monitor what pages on it’s site are getting visited, and then check those pages to see if the material is infringing. The best way to do that is to look at the referring sites, to see how the file is linked, etc.”

If this refers to the http referer header it easy to add a level of indirection that obscures it rendering that method pretty useless. If the court means that Rapidshare is to determine what constitutes an infringement and what doesn’t, then that seems like a dangerous ruling.

Overcast (profile) says:

I know that real world analogies don’t translate well online, but this is akin to saying that a physical storage unit rental company must monitor every single item anyone places in their rented units to make sure no one is storing stolen property. This would include opening up all boxes stored in the unit and pawing through it like the TSA would.

yep – and let’s expand on this further….

Should a City be responsible for what happens on it’s streets? In other words – hold the Mayor liable for each and every crime committed on it’s streets…

Should the Federal Government be liable for any crime that happens within the boundaries of it’s control?

What about car makers – if someone robs a bank with a car, should they be considered an ‘accomplice’?

Pharmaceutical companies – each time someone makes Meth; they should get charged too – since it takes a variety of things – cold medicine I believe is one – to make Meth.

Corporations – should they be held liable when their product is used in the commission of a crime?

If ISPs and websites must ‘police’ their ‘product’ – why not textile makers, energy companies, and all the rest too?

Manok says:

If somehow RS will effectively monitor where its links are coming from and then GUESSES that these are infringing and remove the downloads… then these download links will start using “link anomymizers”, so there’s some proxy inbetween, and RS cannot see the originating web site.

If RS would be forced to check all files uploaded, then people will simply RAR or ZIP these file with a password before uploading them. Then RS cannot check their contents.

(I never have seen this argument used. A fair amount of web sites are already using password protected RAR files. How can for instance MegaUpload then know that these are infringing files?)

(Technically, you could still see the containing file names and then know it is music of a movie, but if that’s a problem then the RAR files could be embedded in another (password protected) RAR file, and you won’t see jack.)

Manok says:

Other by-passes, already in use:
– Make links on web sites not clickable, so they need to be copy-and-pasted: no http-referrer will be reported.
– Links will only become visible through JavaScript, so they won’t show up in Google searches either.
– Embed the links in a text file, and upload this text file to RS.

And then let’s start finding legal RS links, and we’ll link to them from our blogs with a “Avatar full dvd rip in german” description….

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