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?