File-hosting services are obliged to carry out comprehensive regular checks of the link collections that refer to their services if their business model encourages copyright infringements to a considerable extent. This was decided by the First Civil Senate of the Federal Court of Justice (BGH), which is responsible for copyright law, among other things, in a judgement of 15 August 2013, the reasons for which have now been published.
The plaintiff is GEMA, which, as a collecting society, administers the exploitation rights of music authors (composers and lyricists). The defendant operates a file-hosting service; it provides storage space on the internet at the internet address www.rapidshare.com. The users of the service can upload their own files on the defendant's website. Users of the service can upload their own files to the defendant's website, which are then stored on its servers. The user is sent a link with which the stored file can be accessed. The defendant neither knows the content of the uploaded files nor does it keep a table of contents of the files. However, special search engines (so-called "link collections") allow users to search for certain files on the defendant's servers.
The plaintiff claims that 4,815 individually specified musical works were made publicly accessible via the defendant's service without its consent and could be downloaded there. The plaintiff sees this as a copyright infringement and demands an injunction from the defendant.
The action was successful in both lower instances. The Federal Supreme Court dismissed the defendant's appeal. Insofar as the Court of Appeal had also ordered a member of the administrative board and a former managing director of the defendant to cease and desist, the Federal Court of Justice set aside the appeal judgment due to the lack of findings on the responsibility of these persons for the copyright infringements.
The Federal Court of Justice (BGH) had already ruled last year that file hosting services are liable for copyright infringements by their users as "Stoerer" (interferer) for injunctive relief if they do not comply with the examination obligations incumbent upon them after being notified of a clear copyright infringement and further similar infringements occur as a result (judgment of 12 July 2012 - I ZR 18/11, BGHZ 194, 339 - Alone in the Dark; see press release of 13 July 2012, No. 114/2012). When concretising these review obligations, it must be assumed that the defendant's business model is not designed for infringements from the outset. After all, there are numerous legal and customary possibilities of use for its service. In the present case, however, the Court of Appeal found that the defendant had promoted the risk of copyright-infringing use of its service through its own measures. From this, the Federal Court of Justice inferred that the defendant's liability was more severe than in the "Alone in the Dark" decision (BGHZ 194, 339 marginal no. 25 et seq.).
Unlike other services, for example in the area of "cloud computing", the defendant does not charge for the provision of storage space. It generates its revenues only through the sale of so-called premium accounts. The associated comfort features lead to the defendant increasing its turnover precisely through mass downloads, for which files with protected content available for illegal downloading are particularly attractive. This attractiveness for illegal use is increased by the possibility to use the defendant's service anonymously. The defendant itself assumes an abuse rate of 5 to 6%, which, with a daily upload volume of 500,000 files, corresponds to approximately 30,000 acts of copyright infringement.
In determining the scope of the review obligations, it must be taken into account that the defendant promotes the risk of infringing use of its service through its own measures. If the defendant has been made aware of specific copyright infringements by its users with regard to certain works, it is therefore not only obliged to block the specific offer without delay; it must also continuously check all relevant link collections to see whether they contain links to files with the relevant musical works stored on the defendant's servers. The defendant has to determine via general search engines such as Google, Facebook or Twitter with suitable search queries and, if necessary, also by using so-called web crawlers, whether there are indications of further infringing links to its service for the works to be specifically checked. These obligations to check exist to the same extent for each work in respect of which the defendant has been notified of a clear infringement. The review obligations are not diminished by the fact that the defendant has been made aware of a large number of infringements - in the case in dispute the infringement of the rights to more than 4,800 musical works. For copyright protection must not be weakened by the fact that a large number of infringements occur within the framework of a business model that is permissible in itself.
The Federal Court of Justice (BGH) also issued rulings in two parallel proceedings on the same day. In the proceedings I ZR 79/12, the publishers de Gruyter and Campus had objected to the fact that books of their publishing house could still be downloaded from the defendant despite corresponding notices. In the proceedings I ZR 85/12, Senator Filmverleih objected to the fact that the film "The Reader" could be downloaded from RapidShare via the defendant's service despite a notice.
Judgment of the Federal Court of Justice of 15 August 2013 - I ZR 80/12 - File hosting service
Lower courts:
OLG Hamburg - Judgment of 14 March 2012 - 5 U 87/09, MMR 2012, 393
LG Hamburg - Judgment of 12 June 2009 - 310 O 93/08, ZUM 2009, 863
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
