Can file-hosting services or cyberlockers be made liable for enforcing copyright? It seems they can, according to a ruling in the German courts earlier  this month.

The ruling, in the German  Federal Court of Justice (Bundesgerichtshof), follows earlier rulings  in the  District courts. It concerns the computer game called ‘Alone in the dark’. The intellectual property for the game is claimed by the computer maker Atari, who filed a suit against the hosting company  Rapidshare.

 The  full ruling  in the Alone in the dark case   has not yet been published, but  some information has been put into the public domain.

 The Federal Court agreed  with the District courts that a file-hosting service is not illegal, as it can be used for non-infringing purposes. It also clarified that under E-commerce law, file-hosting services may not be given a general obligation to monitor for copyrighted files.

 However, the Federal court ruling  supports the position  that uploading copyrighted files to a file-hosting service equates to making them available to the public, which would be an infringement.

 From the information that is currently available, the German Federal court  indicated that an obligation to monitor can be given, when the claimant specifies   the data that is to monitored. The claimant must specify clearly exactly what files are infringing its rights and causing harm.

 The German Federal court also said that file-hosting companies can be asked to monitor link directories, and to prevent any infringing links from functioning.

 Interestingly, the Court  seems to suggest that file-hosting companies can do keyword searches for infringing files or links that have been brought to their notice.

 This is a little worrying and could be problematic. The subject of this case is an interesting instance. Alone in the dark is not a distinctive phrase, and could conceivably occur in many instances that would have nothing to do with the  computer game in question. If one enters it into Google, although a majority of links do appear to relate to the computer game, one also comes up with other texts, including  a Daily Telegraph article on  Tolkein’s The Hobbit.

 Hence, link monitoring for this phrase in order to enforce Atari’s IP rights, could put at risk the freedom of speech of others who have nothing to do with the game.

 The German Federal court ruling on the Alone in the dark case does seem to acknowledge that there is some difficulty in  implementing such a  ‘precise’ monitoring obligation.  The case has been thrown back to the District courts to work out  how to do it.

 It remains to be seen whether the case will create a precedent at European level.

 I am grateful to Sandra Schmitz, PhD Candidate at University of Luxembourg, for the information  on this case.

  This is an original article from Iptegrity.com. If you refer to it or to its content,  you should cite my name as the  author, and provide a link back to iptegrity.com.  Media and Academics – please cite as Monica Horten,  File-hosting liability: are German courts alone in the dark? in www.iptegrity.com,  28 September   2012 . Commercial users - please contact me.

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