When is a file hosting service liable for copyright infringement?

File hosting services can only be held liable for copyright infringements by their users if they have been made aware of a clear similar infringement. This was decided by the First Civil Senate of the Federal Court of Justice (BGH), which is responsible for copyright law, among other things.

The plaintiff, Atari Europe, distributes the successful computer game "Alone in the dark". The defendant provides storage space on the internet at the internet address www.rapidshare.com (file hosting service). Users of the service can upload their own files to the defendant's website, which are then stored on its servers. A link is sent to the user 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, certain search engines (so-called "link collections") allow users to search for certain files on the defendant's servers.

The computer game "Alone in the dark" was made publicly accessible on the defendant's servers and could be downloaded. The plaintiff sees this as a copyright infringement and demands an injunction from the defendant.

The Düsseldorf Regional Court upheld the action. On appeal by the defendant, the Düsseldorf Higher Regional Court dismissed the action. The Federal Supreme Court (BGH) has now overturned the judgement of the Higher Regional Court (OLG) and referred the case back to the lower court.

Since the users of the service upload their files without the defendant's prior knowledge, the defendant is neither a perpetrator nor an accessory in copyright infringements committed in the process. However, the defendant can be liable for injunctive relief if it has violated its duty to verify. As a service provider within the meaning of the TMG, the defendant does not have to generally check the information stored with it for infringements. Such a comprehensive duty to check is also not required because the defendant's service is particularly susceptible to copyright infringements. This is because legal uses of this service, for which there is a considerable need, are available and common in large numbers. A duty to examine on the part of the defendant with regard to the computer game "Alone in the Dark" therefore only arises when the defendant has been made aware of a clear infringement of rights with regard to this game.

On 19 August 2008, the plaintiff had given the defendant a corresponding reference to the game "Alone in the Dark", which could be downloaded from Rapidshare. The defendant then deleted the specific file with the game in question, but failed to check whether the game "Alone in the Dark" had also been stored on its servers by other users and could still be accessed there.

In the case at issue - according to the Federal Court of Justice - it was generally not sufficient that the defendant had blocked the infringing file specifically named to it. Rather, it also had to do what was technically and economically reasonable to prevent - without endangering its business model - the game from being offered again to third parties by other users via its servers. The defendant may have breached this duty because it had not used a word filter for the related term "Alone in the Dark" to check the file names stored with it.

The plaintiff seeks a second injunction prohibiting the defendant from allowing hyperlinks from certain link collections to files stored with it containing the computer game "Alone in the Dark". In principle, the defendant's duty to examine can also extend to such infringements. However, this requires that the hyperlinks are displayed in the usual search process for the link collection when the name of the game is entered and that the hit list contains files on the defendant's servers which cannot already be found there by a word filter for file names containing the phrase "Alone in the Dark". It is true that the defendant is not the operator of the link collections. However, it can delete files with the computer game "Alone in the Dark" on its own servers. In principle, the service provider can be expected to check a manageable number of relevant link collections for specifically designated content.

The findings made by the Court of Appeal on the reasonableness of review measures were not sufficient to conclusively decide on the question of the defendant's breach of duty. The Federal Supreme Court therefore referred the case back to the Court of Appeal for a new hearing and decision. The plaintiff then has the opportunity to adapt its claims to the defendant's breach of duty, which is the only one under consideration.


Judgment of the Federal Court of Justice of 12 July 2012 - I ZR 18/11 - Alone in the dark

Lower courts:

LG Düsseldorf - 12 O 40/09 - Decision of 24 March 2010

OLG Düsseldorf - I-20 U 59/10 - Decision of the judgement of 21 December 2010


Source: Press release of the BGH


Goldberg Attorneys at Law 2012

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law

E-mail: info@goldberg.de