Sending Liability Up The Stack: Domain Registrars Potentially Liable For Infringement By End Users

from the tertiary-liability dept

For quite some time now, we've been concerned about the continued expansion of "secondary liability" concepts, adding more and more liability for copyright infringement to parties who are often far removed from any actual infringement. There are two major concerns with this. First, putting liability on one party for the actions of another just seems generally problematic. But, perhaps more importantly, when you put potential liability on an unrelated party, the end result is almost always excessive policing in a manner that hinders or entirely blocks perfectly legitimate activity and speech.

That's why a recent court ruling in Germany is so problematic. It's the followup to an earlier ruling that found a domain registrar, Key-Systems, liable for actions done by the users of a torrent tracking site H33T. H33T just hosted the torrent (which, we should remind you, is not the actual infringing file), and some users used that tracker to torrent the album Blurred Lines. When H33T failed to respond to a takedown notice, Universal Music went after the registrar, and the court said it was Key-System's responsibility to stop the infringement. Of course, the only way for the registrar to do that is to yank the entire domain.

The case was appealed, but the appeals court upheld the lower court ruling. Even though the registrar pointed out (accurately) that it had no way of knowing if the torrent was actually infringing, the court said that the registrar was responsible for assuming it must be infringing once it had contacted the domain owners and not received a response. That's an interesting shifting of the burden of proof. The court also seems unconcerned that the only way the registrar can remedy the situation is to take everything down, saying that if the website didn't want this to happen it should have responded promptly to the takedown notices it had received.

Much of this seems to focus on assuming guilt unless one can prove innocence, and further believing that it's somehow "obvious" to recognize when someone is infringing on copyrights. As the Universal Music lawyer tells TorrentFreak in the link above, the company is quite excited about this new power, and will "have this in mind when looking at other domains."

Filed Under: copyright, germany, liability, registrars, secondary liability, tertiary liability
Companies: h33t, key systems


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  • icon
    Ninja (profile), 10 Nov 2014 @ 9:09am

    As the Universal Music lawyer tells TorrentFreak in the link above, the company is quite excited about this new power, and will "have this in mind when looking at other domains."

    Shows how rotten is the garbage that run these organized crime branches. He's thrilled with the new censorship powers they got that bring down entirely legit content.

    Germany has some rather twisted legal system eh?

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 10 Nov 2014 @ 4:48pm

      Re:

      With respect to copyright, yes, but what other countries aren't these days? On the other hand, Germany is the front line in the battle between freedom and the surveillance state.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 11 Nov 2014 @ 10:22pm

      Re:

      I wonder how thrilled the German government will be when someone points out in court that all of this infringement took place within their national borders, so therefore they are also liable?

      reply to this | link to this | view in chronology ]

  • identicon
    DigDug, 10 Nov 2014 @ 9:48am

    In other news Judge declares themselves stupid, 2nd judge admits to same stupidity

    Both of the judges involved need to be removed from their respective benches if they are that stupid, period.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2014 @ 9:51am

    Increasingly it is looking like their can be copyright, or there can be the Internet. If the gatekeepers, whose business is based on the purchase of copyrights from creators have their way, there will be no Internet, which will eliminate the competition they really fear, self publishers, and restore their control over what is published.

    reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 10 Nov 2014 @ 9:52am

    Just get it over with.

    Just go ahead and sue Vint and Bob for inventing it in the first place and shut it all down.

    EVERYONE would immediately go back to buying records and newspapers and going to the movies and watching only prime-time TV shows and listening only to network news like in the Good Old Days (tm)

    /sarc

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 10 Nov 2014 @ 9:54am

    So now in Germany if you were raped, and music owned by Universal was playing you can now sue Universal if you sent them a letter telling them to make the rapist stop.

    Or perhaps it is time that Judges actually have to consider that just because a media company claims someone could do something doesn't mean it could be done as they wanted.

    reply to this | link to this | view in chronology ]

  • icon
    John Fenderson (profile), 10 Nov 2014 @ 9:59am

    Ripped off by an auto shop

    I once had to have an emergency repair made to my car when I was out of town. I found the nearest shop using a phone book, and that shop clearly ripped me off.

    Obviously, I was an idiot when I tried to resolve the issue directly with the auto shop. I should have sued the publisher of the phone book.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Nov 2014 @ 10:26am

      Re: Ripped off by an auto shop

      You should also sue the town for giving him a business licenses.

      reply to this | link to this | view in chronology ]

      • icon
        Rapnel (profile), 10 Nov 2014 @ 9:11pm

        Re: Re: Ripped off by an auto shop

        The domain he downloaded his car from should be cut off. I'm pretty sure he download the car. You deserve to get ripped off if you download a car.

        reply to this | link to this | view in chronology ]

    • identicon
      Bill Stewart, 16 Nov 2014 @ 3:18pm

      Re: Ripped off by an auto shop

      Also, the people who made the street numbers on the auto shop building? Totally guilty, you should have sued them too.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2014 @ 10:01am

    How is Universal Music's registrar supposed to know if Universal Music's files are infringing or not? They're going to have to assume that they are infringing on Universal Music's work and take down the entire domain.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 10 Nov 2014 @ 12:46pm

      Re:

      You joke, but half of the discovery phase in the Viacom vs YouTube case found that Viacom was literally suing YouTube over videos its own staff had uploaded. They actually don't have any idea what they're doing, but pretend that everyone else is at fault for their problems..

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2014 @ 10:08am

    Major labels have always been complicit in hiding what they own. You can not make a guess and be accurate. RIAA Magnet site ran into this one. What was copyrighted in on country wasn't in another. The majors did nothing to attempt to straighten this out. They preferred muddy waters.

    Now couple this with Time Warner's actions with Hotfile where they had deletion authority for their own works but extended that to include FOSS and other programs they didn't own but didn't like. If by just claiming they can set up a domain removal, this is going to get nasty by the time it gets to the little people with an inclination to use this method.

    reply to this | link to this | view in chronology ]

  • identicon
    any mouse, 10 Nov 2014 @ 10:17am

    Let's expand secondary liability to its illogical conclusion. All copyright infringement occurs because of content creators. If they would stop creating then people would stop infringing.

    reply to this | link to this | view in chronology ]

    • identicon
      Just Another Anonymous Troll, 10 Nov 2014 @ 10:23am

      Re:

      Dagnabbit! I was just about to suggest quaternary liability for content creators because it's their fault for making the content creator in the first place!

      reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 10 Nov 2014 @ 10:22am

    Dunning-Kruger

    It's easy to make judgements when you have no idea how things work.

    reply to this | link to this | view in chronology ]

  • identicon
    Ben, 10 Nov 2014 @ 10:23am

    Simple Fact, Hollywood is not being killed by piracy, It's committing Suicide, by over paying actors, and over estimating the public, fast and furious 7 ,expendables part 3, bourne identity 5 coming soon. Not to mention theaters are just not where people want to go. Really lets be honest it's all crap. Get better writers get a original idea.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2014 @ 10:36am

    The decision neglects the fact that killing the DNS for a domain name doesn't actually disable the site. Sure, it can make it harder to access since you'd have to know what the site's IP address is, but all the "infringing" content is still there.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2014 @ 10:39am

    the long arm of legal liability

    This court ruling follows a familiar pattern, that is, that anyone within x-degrees of separation from actual copyright infringers is guilty of infringement themselves.

    Pirate Bay moneyman Carl Lundström was sentenced to prison a few years ago, despite being at least two degrees of separation removed from any actual infringers.

    This puts pressure on everyone associated even remotely with copyright infringemnet. In addition to the torrent site operators, the hosting providers, payment processors, and now domain leasers are getting hit with the responsibility of policing sites that they have no involvement in or control over, other than the ability to pull the plug on some aspect of it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2014 @ 10:45am

    Mike, if the German courts keep pushing copyright liability 'up the stack' they may have to worry...*sunglasses*...about stack overflow.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2014 @ 12:00pm

    so much for the 'punishment is supposed to be proportionate to the accusation' under EU law. this German court has completely ignored that.
    i sure hope there will be a higher appeal, otherwise, just as the entertainment industries want, the furthest away from a 'problem' is still going to get stung! i wonder how those same industries feel when they are held responsible when a manager fails to pay the artists, even though they have paid their bill?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2014 @ 1:36pm

    My Grandfather used to have a saying:

    "When everyone else is the problem, then maybe the problem is you".

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 10 Nov 2014 @ 1:59pm

    So if I go to Germany and get mugged, can I sue the government for not forcing the police to do a better job patrolling the streets and stopping crime?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2014 @ 2:09pm

    What about---?

    What about the authority that granted an occupancy permit to the registrar? Are they not responsible for not anticipating this outcome? Logic would follow that line, or maybe the Feds for accepting the State into the union. To much callus liability to go around unchecked.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2014 @ 7:28pm

    Re: the long arm of legal liability


    This puts pressure on everyone associated even remotely with copyright infringemnet. In addition to the torrent site operators, the hosting providers,
    payment processors, and now domain leasers are getting hit with the responsibility of policing sites that they have no involvement in or control over,
    other than the ability to pull the plug on some aspect of it. 


    Interesting and astute point.

    Are there other areas of legal liability wherein the law treat the constellation X does something illegal, Y has some connection to X, and Y is ipso facto held responsible either for (a) Not terminating the relationship with X; (b) Not reporting X to the injured party; or (c) Not terminating the relationship with X prior to a court order.

    It would seem that even telco providers are responsible on any of these grounds, and only are immune because there is a specific statutory safe harbor for service providers.

    What about an administrator of a shared network allowing every guest user to establish an encrypted connection to the internet?

    If the connection is encrypted, the administrator has no chance to verify if the contents transmitted by one user of the network violates copyright.

    The only recourse seems to be cutting off the suspected user, but what if the user denies the allegation?

    A legal regime under which a copyright holder may shoot first and ask questions later would permit anyone to shutdown any networked system pending a judicial ruling.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Nov 2014 @ 4:05am

    Yup, one more nail in the old, centralized, legacy DNS system. A few more rulings like this and it'll be time to put that coffin in the ground and bury it.

    reply to this | link to this | view in chronology ]

  • icon
    toyotabedzrock (profile), 11 Nov 2014 @ 1:58pm

    How long till someone uses this in an election to shutdown the person they are running against?

    reply to this | link to this | view in chronology ]


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