Dangerous Ruling In Germany Makes Domain Registrar Liable For Copyright Infringement On Website It Registered

from the any-means-necessary dept

We already find the concept of “secondary liability” when it comes to copyright troubling enough. It’s worrisome when a third party who had no direct involvement in the actual infringement can be blamed for it. Yet, in the legacy entertainment industry’s insane infatuation with stopping all infringement, they keep going further up the chain, past secondary liability into tertiary or possibly even quaternary liability — blaming those further and further removed from the actual infringement. That includes going after companies like ad providers and search engines — but also, apparently, it includes going after registrars. We’ve seen some of this recently in various attempts to target registrars, but a ruling in Germany is hugely troubling, finding a registrar guilty because a site registered through that registrar was apparently used by someone to infringe.

Let’s be clear just how far this is removed from the actual infringement. The infringement, if it actually existed, was between two or more individuals, who shared a torrent of Robin Thicke’s album Blurred Lines. Once removed from that was the torrent site H33T, which did not actually engage in any infringement, but hosted the torrent (which, again, is not the actually infringing file). Another layer removed from that would be H33T’s web host. And then we go one more layer up, and we finally get to Key-Systems, the registrar, which was ordered by a court to stop the infringement all those many layers down. And, of course, as the registrar, its only option was to yank the DNS entry, which it did, shutting down the entire site, even if everything else on the site was legal.

It’s no secret that Germany seems to be much more open to ridiculous secondary liability claims, leading to some bizarre and dangerous rulings that will stifle innovation. And this seems to fit right in with those in the past. Key-Systems’ lawyer agreed, telling TorrentFreak that the ruling “made no legal sense” and had “dire consequences for the kind of services German registrars can provide.”

Universal Music, which brought the lawsuit, defended the outcome with some bizarre logic in a comment to TorrentFreak as well. First, a lawyer for Universal claimed that since H33T was a domain reseller, that tied the two companies together, but that makes no sense, especially since the issue of the torrent is totally unrelated to reselling domain names. Just because the companies have a relationship, doesn’t make one liable for the others’ totally unrelated actions. But then there’s this absolutely insane logic:

Bruess says at this point it became “quite clear” that as “the only party involved who could stop the infringement”, Key-Systems needed to take action. That involved Key-Systems effectively disabling the whole domain, but Bruess says that was not his company’s request. They had only one requirement – to disable access to a single URL.

“In essence, Rasch Legal had not asked Key-Systems to close down h33t.com, but to stop one single torrent from being communicated to the public through h33t and h33t’s tracker,” he explains.

But, let’s take that ridiculous logic one step further. Say, for example, that the registrar was unable to stop this particular torrent from being shared? Do we move one step up the ladder? They could, say, go to VeriSign, and demand they take down the entire .com database, right? Because that would be “the only party who could stop the infringement” at that point, right? And, even though they just wanted that single torrent taken down, if the only way VeriSign can do it is to nuke most of the internet, well, that’s perfectly reasonable, right?

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Comments on “Dangerous Ruling In Germany Makes Domain Registrar Liable For Copyright Infringement On Website It Registered”

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42 Comments
Ehud Gavron (profile) says:

The Obi-Wan Doctrine

The Obi-Wan Doctrine clearly indicates that in the event only one entity can solve the problem of the horrible business model the plaintiff chose upon itself, then that entity — despite not being involved, and miles away — must involve themselves to their own eventual death.

“Help me Obi-Wan, you’re my only hope.” — Leia

zip says:

It might be a completely ridiculous ruling, but at least the domain owner got to argue the case in court, and (presumably) can appeal the verdict and get it overturned. That’s the way the law is supposed to work.

It’s probably worse here in the states, where the feds seized Dajaz1.com without so much as a warrant, then despite all the negative publicity, stonewalled for over a year before finally ‘noticing’ that the site was completely legal.

beltorak (profile) says:

Re: Re:

It might be a completely ridiculous ruling, but at least the domain owner got to argue the case in court, and (presumably) can appeal the verdict and get it overturned. That’s the way the law is supposed to work.

I disagree. Something like this should be laughed out of court.

> It’s probably worse here in the states, where the feds seized Dajaz1.com….

Yes, there are crazier things happening throughout the world, but making the comparison this way you are implying that we shouldn’t worry too much about it. In effect you are setting the threshold for concern on the wrong end of the scale.

The baseline for reasonableness should be not fucking crazy; we should not be comparing events (or by extension philosophies) on the basis of “well, worse things have happened, so this is not that big of a deal”.

Whether or not you believe that, the tone of your post strongly implies that “this is not that big of a deal”.

Anonymous Coward says:

As a few of you may recall the US at one time had national alcoholic probation. Even less well known was that at the same time there was state probation.

National was repealed in 1933 but not some state.

Come the 1960s and I am in college reading the local news rag.

One article described the following situation in one of the dry states.

Seems the dry law in that was that one could not possess alcoholic for the purposes of consumption but there was nothing in the law that limited possession for sale or non consumption.

The state being ever so helpful there fore open state stores – state monopoly stores that sold you guessed it alcoholic.

What would then happen is the state would sell you the booz and then the cops who were waiting outside the state store would arrest you for possession of booz.

Now it comes along the Governor throws a major party. All the legislator was in attendance.

Being fed up with the ridiculous situation the state attorney rounded up the lot of them and off to the slammer they go.

The legislature, who makes laws and governor, who runs has to approve new laws were all there.

So, what did they do?

They convened an emergency meeting of the state legislator, passed a bill that rescinded prohibition retroactively so that their actions of the day before were legal.

Maybe that is what needs to be done here to the apporiate people.

eaving (profile) says:

Curious

At some point if countries keep rolling out stupid rulings such as this, or some of the French attacks on Google, can these companies simply start blocking said countries? While I’m sure the domain registrar or Google would be unhappy to lose the corresponding business it still seems less painful and I would frankly love to see the reactions of the governments when large portions of the net simply went away.

Pawn to d4 says:

The logic of the ruling (I live in Germany and speak German at near-native level) seems to be?by analogy?that the surest way to fix a leaky roof is to burn down the house. It is also unfortunate that this matter landed in Saarbr?cken. If I had to wager, I would guess that this matter is the first music industry matter to have been adjudicated in Saarbr?cken. If, however, this matter had landed in Berlin or Hamburg, I would be willing to wager that another ruling would have been made.

This ruling makes a mockery of helping. The respondent did not act hostilely to the petitioner when it requested voluntary injunctive relief from the respondent, but tried to help the petitioner by providing it with the information it needed to take legal action against the infringer itself. I find it hard to imagine that this would have been a contributory factor against the respondent in a larger city. In Saarbr?cken, however, the respondent was rewarded with an injunction, court fees, and a bizarre ruling against it.

Mike Gale (profile) says:

If you object,do something

These bizarre things will continue while we have law systems based on inappropriate core precepts administered by those who are criminally ignorant of the world they impact.

Secondary Liability cuts both ways.

This music company (Universal) represents artists. So I guess they bear primary responsibility for this travesty of reason, rightness and humanity.

If you care tell their fan clubs, burn your copies of their music (if that’s your thing), boycott their concerts, tell them in person whatever (as long as you stay within the law).

Here’s some names from the Universal web site:

A THOUSAND HORSES
AALIYAH
AARON FRESH
AARON NEVILLE
ABRAHAM MCDONALD
ACE HOOD
ADRIENNE BAILON
AFI
AFROMAN
AGNES
AGNETHA F?LTSKOG
AIR
AKON
AKWID
ALACRANES MUSICAL
ALEJANDRO ESCOVEDO
ALEJANDRO FERNANDEZ
ALEX CLARE
ALEXISONFIRE
ALFREDO OLIVAS
B.B. KING
BABASONICOS
BABY BASH
BABY BOY
BAD LIEUTENANT
BAD MEETS EVIL
BANDA EL RECODO
BANDA LOS RECODITOS
BANDA SINALOENSE MS DE SERGIO LIZARRAGA
BANKS
BARRY WHITE
BASTILLE
BAT FOR LASHES
BE YOUR OWN PET
BEASTIE BOYS
BEBEL GILBERTO
BECK
BELANOVA
BERNARD FANNING
BETH ORTON
C. BREWER/D. RUNNICLES/ASO
C2C
CAF? TACUBA
CALIBRE 50
CAPITAL CITIESCARE BEARS ON FIRE
CARIBBEAN CONNECTION FEAT. DAD
CARLA BRUNI
CARLOS Y ALEJANDRA
CARLY RAE JEPSEN
CARNEY
CASHIS
CAT STEVENS
CELTIC THUNDER
CHAMILLIONAIRE
CHARLES HAMILTON
CHASE COY
CHENOA
CHER
CHESTER FRENCH
D. FRIZZELL/S. WEST
DANIEL ASH
DANIEL HOPE
DASHBOARD CONFESSIONAL
DAVID BANNER
DAVID BISBAL
DAVID GARRETT
DAVID GRAY
DAVID GUETTA
DAVID NAIL
DAYS DIFFERENCE
DEAN MARTIN
DEBI NOVA
DECEMBERISTS
DEF LEPPARD
DELTA SPIRIT
DEMI LOVATO
DERRICK HODGE
D’ESPAIRSRAY
DIAMOND RINGS
EASTON CORBIN
EDDY LOVER
EDWARD SHARPE & THE MAGNETIC ZEROS
EELS
EL DE BARGE
EL MACIZO
EL POTRO DE SINALOA
EL TIGRILLO PALMA
EL TRONO DE MEXICO
ELBOW
ELECTRIC TOUCH
ELECTRIK RED
ELEFTHERIA ARVANITAKI
ELEPHANT MAN
ELI YOUNG BAND
ELIZABETH AND THE CATAPULT
ELLIE GOULDING
ELTON JOHN/LEON RUSSELL
ELVIS COSTELLO
EMELI SANDE
FABOLOUS
FAIR TO MIDLAND
FALL OUT BOY
FANNY LU
FAR EAST MOVEMENT
FATBOY SLIM
FEDERICO AUBELE
FEFE DOBSON
FEIST
FERGIE
FIDEL RUEDA
FINDLAY BROWN
FIVE FINGER DEATH PUNCH
FLIPSYDE
FLOBOTS
FLORENCE + THE MACHINE
FLYLEAFFONOVISA
FOREVER THE SICKEST KIDS
FOUR TOPS
G. LOVE
GABRIELLA CILMI
GAME
GARY ALLAN
GARY GO
GAVIN ROSSDALE
GEORGE STRAIT
GERMAN MONTERO
GHOST B.C.GHOSTFACE KILLAH
GIN WIGMORE
GINUWINE
GIRLICIOUS
GIT FRESH
GLORIA TREVI
GODSMACK
GOLD FIELDS
GORAN BREGOVIC
GOYO GASTELUM
GRACIELA BELTR?N
HAJI SPRINGER
HAL LINTON
HALEY REINHART
HALFORD
HATEBREED
HAYES CARLL
HAYLEY WESTENRA
HAYSTAK
HECTOR EL FATHER
HEDLEY
HELENE GRIMAUD
HOLE
HOLLY WILLIAMS
HOLLYWOOD UNDEAD
HOOBASTANK
HOT CHIP
HUICHOL MUSICAL
I-15
IDA MARIA
IGGY AZALEAIL VOLO
IMAGINE DRAGONSIMELDA MAY
IMOGEN HEAP & FROU FROU
INDIA.ARIE
INGRID MICHAELSON
INNERPARTYSYSTEM
INTERSCOPE
ISSA GADALA
IVAN
IVY QUEEN
J KING Y MAXIMAN
J. FUTURISTIC
JA RULE
JA-BAR
JACK JOHNSON
JACKIE CHAIN
JACKSON 5
JADAKISS
JAKE BUGG
JAMES
JAMES MORRISON
JAMES VINCENT MCMORROWJAMEY JOHNSON
JAMIE CULLUM
JARED EVAN
JARON AND THE LONG ROAD TO LOVE
JARVIS
JASON ALDEAN
JASON MORAN
JAVEN
KACEY MUSGRAVES
KAISER CHIEFS
KANYE WEST
KANYE WEST/JAY-Z
KARDINAL OFFISHALL
KATE NASH
KATE VOEGELE
KATHARINE MCPHEE
KATIE MELUA
KATY PERRY
KEAK DA SNEAK
KEANE
KELIS
KELLY ROWLAND
KEM
KENDRICK LAMAR
KENNY “BABYFACE” EDMONDS
KERI HILSON
KERLI
KEVIN RUDOLF
L.L. COOL J
LA APUESTA
LA ARROLLADORA BANDA EL LIMON
LA FACTORIA
LA INCONTENIBLE BANDA ASTILLEROS
LA ROUX
LADY ANTEBELLUM
LADY GAGA
LADYHAWKE
LARRY HERNANDEZ
LAURA BELL BUNDY
LAUREN ALAINA
LEDISI
LEE ANN WOMACK
LEE RITENOUR
LENY
LIFEHOUSE
LIGHTS
LIL JON
LIL’ ROB
M.I.A.
MACHETE MUSIC
MACK & MALONE
MACY GRAYMAJOR LAZER
MAKANO
MALI MUSIC
MALLARY HOPE
MANN
MANNHEIM STEAMROLLER
MARCO ANTONIO SOLIS
MARGO GURYAN
MARIAH CAREY
MARIANNE FAITHFULL
MARILYN MANSON
MARISA MONTE
MARK SALLING
MAROON 5
MARQUES HOUSTON
MARTINA MCBRIDE/TRAIN
N.E.R.D
NAS
NAS & DAMIAN MARLEY
NATALIA KILLS
NATALIE COLENATURALLY 7
N-DUBZ
NEIL DIAMOND
NEIL HALSTEAD
NELLY
NELLY FURTADO
NEON TREES
NERO
NERVO
NEW KIDS ON THE BLOCK
NEW YORK DOLLS
NE-YO
NICKI MINAJ
NICOLE SCHERZINGER
NIKKI YANOFSKY
OLGA TANON
ONE BLOCK RADIUS
ONEREPUBLIC
ORIANTHI
ORIGINAL BANDA LIMON
ORIGINAL CAST RECORDING
OWL CITY
PABLO MILANES
PAC DIV
PALOMO
PAPA ROACH
PARACHUTE
PARADISO GIRLS
PATRICK STUMP
PAULA COLE
PAULINA RUBIO
PEARL JAMPEDRO FERNANDEZ
PEGGY LEE
PESADO
PET SHOP BOYS
PETER FRAMPTON
PHIL VASSAR
PHILLIP PHILLIPS
PHILTHY RICH
PHOENIX
PJ HARVEY
Q-TIP
QUEENS OF THE STONE AGE
QUINCY JONES
R.CITY
RAKIM
RAMMSTEIN
RANDY HOUSER
RANDY MONTANA
RASCAL FLATTS
RAY LAVENDER
RAZORLIGHT
REBA MCENTIRE
REDMAN
RENI LANE
REV THEORY
RHYERICH BOY
RICHY NIX
RICK JAMES
RICK ROSS
RIHANNA
RISE AGAINST
ROB ZOMBIE
SAFETYSUIT
SALIVA
SALLY SHAPIRO
SALT-N-PEPA
SAM SPARRO
SARAH BLASKO
SARAH BUXTON
SAUL EL JAGUAR ALARCON
SCHOOL GYRLS
SCOOTER SMIFF
SCORPIONS
SCOTTY MCCREERY
SEAN GARRETT
SEAN O’CONNELL
SEBASTIAN INGROSSO
SELENA GOMEZ
SEMI PRECIOUS WEAPONS
SERENA RYDER
SERGIO DALMA
SHANIA TWAIN
T.O.K.
TAIO CRUZ
TAMAR KAPRELIAN
TANYA MORGAN
TAXI DOLL
TAYLOR SWIFT
TEARS FOR FEARSTECH N9NE
TED NUGENT
TEDDY THOMPSON
TEENA MARIE
TERENCE BLANCHARD
TERIYAKI BOYZ
TERRIBLE THINGS
TEYANA TAYLOR
THE AIRBORNE TOXIC EVENT
THE ALL-AMERICAN REJECTS
THE AVETT BROTHERSTHE B-52S
THE BAND PERRY
U2
UMLE
UNIQUE
UNLADYLIKE
UNWRAPPED
UTADA
VALERIA GASTALDI
VAN MORRISON
VANESSA CARLTON
VERSE SIMMONDS
VINCE GILL
VIOLENT SOHO
VISTOSO BOSSES
VITA CHAMBERS
VOLBEAT
VOZ DE MANDO
WALE
WAYNE SHORTER
WE ARE THE FALLEN
WEEZER
WHITE LIES
WILL.I.AM
WILLIAM ORBIT
WILLY NORTHPOLE
WISIN & YANDEL
WOLFMOTHER
XAVIER RUDD
XTREME
YANNI
YEAH YEAH YEAHS
YELAWOLF
YG
YO GABBA GABBA!
YOUNG JEEZY
YOUNG LOVE
YOUNG MONEY
YOUR VEGAS
YUKSEK
YUMMY BINGHAM
YUNG LA
Z-RO & CHILL
ZZ WARD
.38 SPECIAL
10 YEARS
16 FRAMES
2 CHAINZ24 HORAS
3 DOORS DOWN
4 MINUTE
40 GLOCC/SPIDER LOC
50 CENT
9TH WARD

Even if they’re great artists, these guys have no right to smash the Internet.

Anonymous Coward says:

this, like 99% of verdicts in Internet and it’s related cases are ruled on by judges who haven’t got a damn clue what is involved, how it works or what the hell they are talking about! i seriously hope there is an appeal because as i have said many times, the entertainment industries will carry on until they have completely fucked up the whole Internet or have complete control of it, deciding what can be done etc and where. they are not bothered which of the two options happen because the dopey fuckers still think that people are going to run back to the high street stores as fast as their legs can take them!!

Just Sayin' says:

moronic

“But, let’s take that ridiculous logic one step further. Say, for example, that the registrar was unable to stop this particular torrent from being shared? Do we move one step up the ladder? They could, say, go to VeriSign, and demand they take down the entire .com database, right?”

You get points for trying for outrage, but you fail so badly that it hurts.

The registrar, in removing the domain from service, makes the file unavailable via that URL, plain and simple. It doesn’t and never would go any further than that. Of course, if the registrar failed to remove the domain from action (and aided the pirates by knowingly keeping it active), then perhaps action would be taken against the registrar by ICANN, who have shut down a number of registrars in the last little while for non-compliance issues.

There is no “take down the whole .com” here, there isn’t even a logical way to end up there. Stop waving your arms around on this one, you look like you are losing it, Glenn Beck style.

The Wanderer says:

Re: moronic

There’s no logical way to end up at VeriSign (whose only way to take down the offending link might well be to take down the entirety of .com), you’re right about that.

But there’s no logical way to end up at the registrar (whose only way to take down the offending link was to take down the whole domain), either – and yet that’s where this already ended up. So why shouldn’t we now consider the scenario where the other illogical thing might happen?

Anonymous Coward says:

What if we had laws like that with 40+ year old adults?

I wonder if those judges who are fine with this would be perfectly fine with extending secondary liability to parents, for their 40+ year old kids who long moved out of their house.

After all, you created them! If they get a speeding ticket, it’s all your fault for not controlling them!

DannyB (profile) says:

Imagine this

1. Jane registers jane.com with SuperDooperDomains.
2. SuperDooperDomains is strongly against copyright infringement.
3. Jane puts up a website that has only legal content.
4. Some time passes.
5. Evil Jane changes her website, while twirling her mustache, and starts hosting copyright infringing content.
6. Now SuperDooperDomains is suddenly liable through no action or intent of it’s own. Furthermore SuperDooperDomains is strongly against copyright infringement.

This seems insane.

Wouldn’t it be a reasonable, well considered and fair solution, in the interest of justice, to put the liability onto Google instead? After all, it’s obviously Google’s fault.

beltorak (profile) says:

The plaintiff would like to consolidate the following defendants in this claim:

happyp1r4te for copying the work
Alienware for making the computer allowing the work to be copied
Intel for making the CPU that changed the work into a readily piratable form
Hitachi for making the monitor displaying the progress of the infringment
Logitech for making the keyboard permitting the infringer to hack infringing codes
Realtek Semiconductor for enabling the computer to transmit the infringing work
Belkin for making the internet cable carrying the infringing content
LG for making the powerstrip keeping the computer on while it was infringing
Linksys for making the router enabling the infringment to be transmitted to the internet
Comcast for selling infringment-enabling services (“internet access”)
AT&T for the internet routers that carried the infringement
GoDaddy for providing the domain name on which the infringement was hosted
Verisign for allowing GoDaddy to continue to sell services to infringers
IANA for not revoking Verisign’s right to use “.com” under which the infringement was hosted
Adobe for selling “dreamweaver” without proper safe guards in place to prevent “hot links” to the infringing works despite this simple suggested modification to their software!
Google (of course) for directing users to infringing works
– The US Intelligence Agencies (NSA, FBI, CIA, DHS, ICE, CBP, and the NYPD) for not stepping in to stop the infringement
The Poetry Foundation for promulgating the works of one “William Shakespeare” (presumed deceased) which allowed the infringer to clearly articulate the infringement
God for imbuing “happyp1r4te” with the spark of life after knowing infringment would be taking place

I hereby attest in good faith that we have named all responsible parties, however we reserve the right to amend this list as new details come to light.

RonKaminsky (profile) says:

Gotta try this

Let’s invent an algorithm for generating a sequence of random fallback tracker URLs, similar to the algorithms for C&C URLs for botnets — but let’s make sure that it involves using some information from all/any of the *AAs websites.

Then, by the same logic, the court would have to ask for those websites to be similarly expunged. This outcome might “help” the court understand that such a ruling is not a good idea…

btrussell (profile) says:

“And, even though they just wanted that single torrent taken down, if the only way VeriSign can do it is to nuke most of the internet, well, that’s perfectly reasonable, right?”

Yes.

“Nothing stings more than a massive amount of fees, even if, in most cases, it’s the taxpayers who are being docked, rather than the officers (and their supervisors) themselves.

…This fine is in place to help ensure accountability…”

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