Some time ago, I have noted that almost all freedom-related supreme court decisions in Germany
[…] more or less read like:A wants to stop B from doing something. The LG and the OLG stay with A but the BGH finally confirms the freedom of B.
Today, it seems that an exception (I ZR 80/12) to this (undesirable, and – if accurate – frightening) rule was published .
In a lawsuit between the Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA) and the file hosting provider RapidShare the former acted as the plaintiff demanding the defendant to stop providing access to 4815 illegal copies of music recordings that have been uploaded by unidentified users to the servers of the defendant. The Federal Court of Justice of Germany (BGH) has confirmed the decisions of the Landgericht (LG) and Oberlandesgericht (OLG) Hamburg that obligated the defendant to cancel access to copies of the works enumerated by the plaintiff and take reasonable care that they won’t be uploaded again.
This decision is in line with earlier decisions of the BGH so – as far as I am concerned – it doesn’t call for much more comment. It is the second time the BGH had to deal with a lawsuit against RapidShare within only little more than a year. Last July, I have posted about a BGH decision that was cited in today’s decision and obligated RapidShare to install so-called
word filters for the string
alone in the dark in order to detect future copyright violations of a certain work with that name. As a consequence, I have uploaded a file named
alone_in_the_dark.pdf.gpg that contained the BGH decision but CAST5 encrypted with the password
so that RapidShare had no feasible way to determine whether it was a copyright violation. The first time, I’ve failed to download the file periodically so my (gratis) account was scrubbed. Then I recreated my account and uploaded a file again and it stayed there for almost a year now. Thus, from what I can tell, RapidShare does not go as far as to delete any file that’s name matches a given string as I was fearing the decision might (seem to) imply. Today seems to be a good time to finish this experiment. I will not delete my account there immediately but if it happens again due to inactivity (I don’t use RapidShare for anything else except uploading encrypted files with offending names.), I will let things go.
- Press office of the Federal Court of Justice of Germany, Bundesgerichtshof konkretisiert Haftung von File-Hosting-Diensten für Urheberrechtsverletzungen. Press release 143/2013 from September 3rd 2013.