Anyone who makes the author's work available to third parties without restriction on the internet via an online storage link as part of a download link collection without the author's consent infringes the author's right to decide on the public communication of his work. A claim for injunctive relief can also be made against the person who makes the corresponding online storage space available. This is at least the case if his business model structurally entails the risk of mass commission of copyright infringements to an extent that makes the fulfilment of obligations to examine and act reasonable. This was decided by the Higher Regional Court in a legal dispute between GEMA and the online storage company "Rapidshare AG" on 14 March 2012 (Case No. 5 U 87/09).
Under the Copyright Act, which applies throughout Germany, the author of a protected work has the exclusive right to reproduce his or her work in public. The right of communication to the public also includes the right of making available to the public, e.g. on the internet.
In an earlier ruling from 2008 (Rapidshare I), the 5th civil senate of the Hanseatic Higher Regional Court decided that a work is already made "publicly accessible" within the meaning of the Copyright Act when it is posted on the online service "RapidShare". The Senate no longer adheres to this interpretation of the law. Instead, it now assumes that a work has only been made publicly accessible when the respective RapidShare links have been made available to third parties without restriction in the context of download link collections on the internet. This is justified, among other things, by the evolved usage habits on the Internet: Possibilities to store files on servers of third parties in a decentralised manner are becoming more widespread. Users are increasingly storing data with a web hoster in order to be able to access this data at any time with their mobile devices. Providers of decentralised storage space on the internet are often unable to reliably distinguish between permissible and impermissible storage processes with reasonable effort and without unlawful interference with the user's protected legal positions (under copyright law). The mere upload of a copyrighted work to the service of a share hoster such as the defendant therefore did not allow a reliable conclusion that this was necessarily an unlawful use. In the present case, "making available to the public" could therefore only lie in a first - copyright-infringing - publication of the download link.
In the opinion of the Senate, the defendant Rapidshare AG can be held liable for injunctive relief: In a judgment of 14 March 2012, Rapidshare AG was prohibited from making more than 4,000 specifically designated music titles publicly accessible in the context of its online service in the Federal Republic of Germany. The defendant's business model of offering its users the possibility to automatically upload files to its servers and to make the generated links available for downloading did not lead to an increased duty of verification. However, the defendant's business model structurally and in particular with regard to the special promotion of mass access to individual files in the past (e.g. by means of a bonus system) entailed the risk of mass commission of copyright infringements to an extent that made the fulfilment of duties to examine and act reasonable. Thus, in the view of the Senate, the defendant was obliged to take concrete measures to prevent further infringements as soon as it became aware that musical works were publicly available in violation of copyright.
The court pointed out that in view of the fact that a copyright infringement is not already realised with the upload to RapidShare, the defendant's pro-active possibilities to detect and prevent potential infringements within the framework of its service only exist to a significant extent insofar as it concerns a repeated upload of already known files containing infringing content. Rather, the primary concern must now be to prevent the re-distribution of files identified as infringing, e.g. by deleting infringing download links and searching, inter alia, in link resources on the Internet for further links through which the work in question is made accessible in a copyright-infringing manner.
Due to the fundamental importance of the matter, the Senate allowed the appeal to the Federal Supreme Court.
Source: Press release of the Hamburg Higher Regional Court
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
