Intellectual Property Law

Yes, You Should -- If At All Possible -- Seek Legal Advice When Served With a Cease and Desist LetterThe IP ADR Blog

Last week we reported on rumors that Rapidshare had, or was about to be, shut down, rumors that now look likely to resurface. The company, one of the world?s largest ?one-click? file hosting services, has lost a copyright infringement case against German performing rights outfit, GEMA. Representing a claimed 60,000 members and more than 1 million rights owners worldwide, GEMA has taken an aggressive stance in pursuing legal action against Rapidshare, trying to force it to be accountable for the infringing actions of its users.

For its part, Rapidshare has always insisted that it cannot be held responsible for these actions, such as when users upload copyright works (in this case, music) to their servers for subsequent downloading by others.

On 23 January 2008, the district court in Düsseldorf (Landgericht) disagreed with this assertion after GEMA succeeded in convincing the court that Rapidshare should take responsibility for infringements carried out within its service.

GEMA are trying to imply that as a result of the decision, Rapidshare will be forced to take preventative action to stop GEMA works from even getting onto their servers, rather than a DMCA-style after-the-fact removal. GEMA says that if Rapidshare are forced to filter they will likely end up with a service that?s not worth operating, so they may decide to shut it down completely.

The GEMA press release has been published before the complete court decision, so it should be digested with at least a degree of scepticism, considering the huge amounts of spin employed by anti-piracy agencies and the music industries alike.

In a statement, Dr. Harald Heker, Chairman of the board at GEMA said: ?This decision is a milestone in the fight against the illegal use of our repertoire?, which was almost a carbon-copy of a statement he made about the decision from a previous court case against Rapidshare. He went on to explain that measures have to be put in place for the protection of rights holders and claiming that file-hosts are not responsible for what their users do, is no longer an option. ?With this decision of general principle,? he said, ?the course of future action against comparable services has been smoothed.?

In their press release, GEMA speaks about the decision of the District Court of Düsseldorf but also mentions a decision from the District Court of Cologne.

TorrentFreak spoke to Christian Solmecke a lawyer at the Cologne Chambers of Lawyers Wilde & Beuger, to see what is likely to have happened in these cases.

He told us: ?The normal way is as follows: GEMA files a lawsuit against Rapidshare because of alleged copyright infringement on three or four songs. If GEMA wins, Rapidshare is then obliged not to host these particular songs.?

Lots of anti-piracy and industry bodies state that it?s possible for file-hosting services and even ISPs to monitor, police and filter copyright works from their servers and networks. This case is no different, except this time it?s the court that has demanded this type of action.

Christian explains: ?From a legal point of view, it is interesting that the District Court of Düsseldorf decided that Rapidshare has to carry out a lot of preventive actions (if the GEMA press release is correct on this point, of course). This could mean that Rapidshare has to check all of its hosted material for copyright infringements - which is nearly impossible.?

The instruction for Rapidshare to take preventative action is new, and despite another similar court case reaching a different decision. Christian explains: ?Only 30 kilometers away from Düsseldorf, we?ve already had a similar law suit in Cologne. In that case the Oberlandesgericht (Higher Regional Court and Court of Appeal) decided that Rapidshare is only obliged to delete specific songs stated by GEMA. They were not obliged to take preventative action.?

?The future will tell us which interpretation of the law is correct.? Christian told us. ?Perhaps in one or two years we will get a decision on this question from the Federal Court of Justice.?

As the world struggles to update its laws to cope with the digital revolution, the courts - and lawyers - are being kept very busy indeed. So back to the original question: Is Rapidshare going to be closed down - or be left with no alternative but to shut itself down?

Well - maybe??maybe not.

Christian finishes up: ?I believe that Rapidshare will appeal against the decision of the Landgericht (District Court) of Düsseldorf. If they do so, we will have to wait and see what the Oberlandesgericht (Higher District Court) of Düsseldorf (as the Court of Appeal) says.?

In the meantime, while the legal wheels turn and turn, Rapidshare.com and Rapidshare.de continue to operate as usual.

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Full post as published by IP Law Daily on January 28, 2008 (boomark / email).