[x-pubpol] German, French Courts Disagree on Responsibility of ISPs for Illegal Content

[Joly MacFie]

(via KK)

http://www.pcworld.com/businesscenter/article/259294/german_french_courts_disagree_on_responsibility_of_isps_for_illegal_content.html


Courts in France and Germany differ about the way ISPs and online
file-hosting services should deal with take-down requests, with Germany
putting more responsibility on service providers to police content.

It is not enough if a file-hosting service deletes one file when notified
of copyright infringement; the service should do more to make sure it does
not host similar infringing content, the court ruled, said Dietlind
Weinland, spokeswoman of the German Federal Court of Justice on Monday.The
Federal Court referred the case back to the Court of Appeal, a lower court,
to determine what reasonable measures Rapidshare could take to prevent
further copyright violations related to the Atari game. The Court of Appeal
had previously heard the case, ruling that Rapdishare was not guilty of
neglect. The Federal Court, however, said the Appeal Court needs to
determine what the precise responsibility of service providers like
Rapidshare is.

In principle, Rapidshare should have checked its servers for more illegal
"Alone in the Dark" games, the Federal Court said. However, the court did
not specify exactly how Rapidshare should have done that, said Weinland,
adding that there are many ways in which it is technically possible to do
so.

The Appeal Court needs to determine the extent to which Rapidshare is
responsible for taking steps to prevent copyright violation, Weinland said.
The Federal Court did determine that any solution has to be reasonable for
Rapidshare, she said, adding that a word or sentence filter could be one of
the options.

In a similar case between German copyright organization Gema and Rapidshare
over illegally shared music last
May<http://www.cio.com/article/703028/Online_File_Locker_Service_Rapidshare_Declared_Legal_By_German_Court>,
the Higher Regional Court in Hamburg ruled that Rapidshare is not obliged
to continuously scan uploads for infringing works. It did rule however that
Rapidshare should actively monitor links from external sites to the files
it hosts, and in that way spot illegal files and take them down.

Rapidshare has an anti-abuse team that identifies illegal files, which are
immediately blocked when spotted, CEO Alexandra Zwingli said at the time,
adding that she planned to appeal the Hamburg verdict nevertheless because
file hosters should not be obliged to police their systems. It is
beneficial for file hosting services to voluntarily check for infringing
content, but it should not become law to do so, she said.

Rapidshare did not respond to a request for comment on Monday.

While the German courts reached the conclusion that file hosters like
Rapidshare could at least partially be held liable for hosting infringing
content on their servers, a French court seemed to reach a completely
opposite conclusion last week.

The French Final Court of Appeal ruled Thursday that two "take-down,
stay-down" orders made by lower court judges conflicted with the European
Union's 2000 E-Commerce Directive and with the French 2004 law on
Confidence in the Digital Economy.

By ordering ISPs to remove content at the request of the copyright holder,
and then to block all future attempts to upload that content without
further notice, the judges were in effect forcing the ISPs to filter all
content as a matter of routine, something expressly forbidden by the
directive and the law, according to the French Association of Internet
Community Services (ASIC).

The appeals court, in overturning the lower courts' rulings, is effectively
ruling that copyright holders must look out for and notify violations of
their content themselves, and cannot expect ISPs to do it for them.

It is difficult to determine when an ISP has actual knowledge that there is
illegal content on its servers and it is also difficult to determine when a
file hosting service is able to act and how it should act, said Maelle
Lelardic, policy manager at EuroISPA, the pan-European association of ISPs.
This is one reason why there are so many related lawsuits in Europe at the
moment. Certainly when it comes to hosting, hosters are not allowed to
monitor their customers' data, she said.

Looking at services like Rapidshare, Google or eBay, Lelardic said that
notice-and-takedown forms, which let copyright holders identify files that
violate copyrights and tell service providers about them, "work very well."
Services like eBay gladly provide such forms to remove advertising for fake
Louis Vuitton goods for instance, she said.

The European Commission is also aware that it is not easy to determine what
measures are reasonable for the removal of illegal content. That is why it
launched a public consultation on procedures for notifying and acting on
illegal content hosted by online intermediaries. The Commission wants to
know if the industry thinks that all hosting service providers should put
in place easy-to-use mechanisms that allow for the notification of illegal
content, and if so, whether such measures should be the exclusive means of
flagging content.

"The consultation also covers the issue of acting on illegal content: for
instance, should hosting service providers consult the providers of alleged
illegal content? Should they provide feedback to notice providers?" the
Commission said on the consultation
website<http://ec.europa.eu/internal_market/e-commerce/notice-and-action/index_en.htm>.
Stakeholders can contribute to the consultation until Sept. 3.

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