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…