German owned yet globally popular file hosting site Rapidshare may be heading to the Deadpool after a German court found that it was liable for copyrighted files uploaded to the service.
The German equivalent of the RIAA, GEMA took Rapidshare to court over hosting copyright infringing files and at a court hearing January 23, won. The court found that Rapidshare must take responsibility for infringing files hosted on its service
According to a report at TorrentFreak, the problem with this case (compared to previous cases which simply demanded files be taken down) is that the court went one step further and said that Rapidshare must take preventative action against infringing uploads; essentially meaning that Rapidshare should screen every upload, a hard, if not impossible task, that will “likely end up with a service that’s not worth operating, so they may decide to shut it down completely.”
The case may have wider implications, particularly in terms of offering file hosting services to users in Germany. Other file sharing sites may ban German users, and there’s also a risk that now that there has been a win in Germany, similar groups to the RIAA/ GEMA in other nations may try to get similar rulings.
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In Germany every Judge can decide how he wants.
Only the actual law and the interpretation are important. Prior descisions from other Judges doesn’t count.
So this is only one descision from one judge, the other judges in the country may and have judged in similar cases completely different.
Indeed… it would help this site if the authors did some thorough research before posting the first news they stumble upon.
There is no such thing as case law in Germany. This means that judges do not have to follow any prior decisions. Mark is absolutely right on that one.
With no case law, the point of this article disappeared. No offence, but it is all about research before posting. At least if one wants to be seen as credible media!
cheers,
atlon
Can’t wait for Rapidshare to be shut down. I constantly see PDF copies of my book being shared there. Uncool - I put 12 months of hard work and life into that one book.
what is the name of your book? in case i want to down load a copy lol
alton
case law aside this case proves that file hosts can be held liable, and that presents a clear and present danger to every service that offers file hosting in Germany.
Sorry Duncan but as a guy from germany i’ve to say, that the case against rapidshare will not affect any other file hosters in Germany at all. precedences are not so important in german law, as they presumably are in the US. The GEMA will have to bring every filesharer one by one to court. proving everythime, that their business model relies on making money with copyright infringements. its impossible to predict how the next judge will decide on a simular case. especially since the courts were in the past very discordant when judging copyright issues related to the web.
BTW: The court decision just says, that rapidshare has to take “measures”. that can mean fairly a lot
@Duncan
not quite… since their is no familiarity with the case law system at all, decisions cannot even be taken as an indicator for future cases, not as long they have not become statutory law (and the rapidshare case is far from that!)
There was one famous decision concerning a guy who bought an item which was in fact stolen very cheaply on ebay. Of course, the guy didn’t know about this fact. The court held him responsible for concealment of stolen goods.
The next court decided completely different and nobody even mentions the previous case anymore.
Therefore, heading an article with “It’s Fair To Say That Germans Will Soon Have Zero Access To Online File Sharing Sites” basing on ONE court decision in a country where court decision are completely independent and cannot be seen as indicators for future cases seems daring to say the least!
atlon
Athlon, Flo, Mark: You’re wasting your time, Duncan will never correct a story. There are precedents to uphold!
ok, so presuming there is no case law in Germany. What do you want me to say? your system is completely dumb? If a court in any other country rules that something can be held liable, it opens the doors that others may be as well. What, Germany’s legal system is essentially pot luck and how much you pay the Judge to give you the result you want? Precedent and case law is a fundamental of free and democratic legal systems, if you’re saying that Germany doesn’t have that, well….remind me not to visit Germany. My odds are better in Las Vegas, because this is essentially what your saying, and that seems very, very wrong to me. It’s either illegal and liable, or its not. Pot luck is BS. Didn’t the Yanks impose your legal system, or did you guys screw with it along the way?
@Duncan
I’m afraid your last comment was insanely out of place. Unfortunately, this will be the reason for me to stop any further discussion.
Instead of looking into the issue at hand, you try to discredit the whole German law system in general. It would have been more helpful to face critics actively instead of aggressively.
Moreover, your final remark of America having imposed the German legal system could not be anymore pathetic. This blog is a place for serious discussions and there is no need to exploit emotionally challenged subject.
And finally, you assume that we are Germans indeed. Well, I may say that I’m not. However, I’m very familiar with the German legal system as part of my work.
atlon
Duncan: Germany is under the civil system, as is most of the rest of the world (aside from a handful of exceptions the common law system is only used in England and its former colonies).
Here’s the relevant difference: in common law systems judges frequently encounter a situation like this:
* some law says: “a party is liable for X under if he has done A, B, and C”.
* some lawyer says “hrm, Mr. Defendant has done D, E, and F, which are not exactly A, B, and C, but are arguably close enough they should be treated the same way, thereby making Mr. Defendant liable for X.”
In such a situation, the judge gets responsibility for deciding if — in general — D, E, and F are or are not equivalent to A, B, and C for legal purposes; moreover, the judge’s decision has the potential to effectively become law, because other judges are very unlikely to overrule established precedents.
In a civil-law system, a judge in an analogous situation only has the obligation to decide if D, E, and F are or are not equivalent to A, B, and C for this specific case. The decision is effective only for the specific case at hand, and the ability to actually make law remains in the hands of the legislative body.
In effect, the civil system makes a clean division of law-making ability — the legislature makes laws, the judicial system applies them — and limits the possibility for judicial activism, because without binding precedent the effect of any such activism is limited to the case at hand.
To someone fond of the civil system the American system seems much more “Las Vegas”: the fact that cases depend only on the facts of the case and the printed, freely and publicly-available statutes — and not on some squirrely precedents you’d need Lexis/Nexis and Westlaw to dig up — means that in general the legal status of particular activities and the likely outcomes of a particular case are more, not less, predictable.
Germany doesn’t have case law. Judges are supposed to make decisions solely based on written law. Nothing else matters. However, that doesn’t mean that cases get forgotten completely. After all, even in Germany the law has its way of evolving and once a firm and well-explained decision is made (repeatedly) by the high courts, it surely takes some courage for another judge to ignore it.
RS going down will be unsettling, but even then we still have Megaupload, where most of the illegal stuff gets mirrored anyways and which is based in HK.
Duncan, you could have just apologized for an overly aggressive headline.
“It’s Fair To Say That Germans Will Soon Have Zero Access To Online File Sharing Sites”
Now you know that is is not fair to say “zero access… soon” at all. It’s one story and one headline. We don’t expect you to know everything, but we do expect you do be a man when you’re wrong.
@duncan
“Didn’t the Yanks impose your legal system?”
Why would that be? Because the Yanks won WW2 all by themselves so got to impose their legal system on Germany? And you slag Germany like they are a corrupt 3rd world country.
This single post and your reaction to readers’ criticism has done a lot to harm the reputation of one of the more interesting and credible blogs in the US.
Poor Third World. Always the ones to get the last hit!
Atlon, Flo and Mark made some very valid comments and Duncan, you really lost a lot of credibility here. Why attack another countries legal system and call it BS just because you don’t really understand it? The headline is way to sensationalist and atlon, mark and flo tried to help you correcting it. I love Techcrunch but this is weak.
To #10, I’m not familiar with German law, but wouldn’t be logical for other judges to be influenced by an earlier decision? After all, judges are humans too, and adhere to herd like behaviour.
So if there is another case like this, a judge may take a look, and take an easy route out and make a similar decision.
Regarding Rapidshare I believe they are very profitable unlike a lot of startups on TechCrunch, so if things go bad they’ll just move their servers to Poland or Russia.
Duncan,
You may want to learn the difference between case law and common law.
Anglo-Saxon countries = common law
Most of the world = case law
Here’s some reading (under Civil versus common law)
http://en.wikipedia.org/wiki/Civil_law_(legal_system)
Now which one do you think makes sense?
It is fair to say TechCrunch has no idea what it is talking about.
Sadly, this is becoming true, but even if it weren’t this one example proves it. One post, just like like one judge in Germany, is enough.
Duncan, please correct the story. TC is bound to make mistakes. You have too much to cover and too little time. However, as Michael said in comments on the disaterous QTrax post, TC should also be willing to post corrections.
Some additional information:
1. The German equivalent for the RIAA would not be the GEMA but the IFPI. The GEMA is what the ASCAP is for the US.
2. The respective verdict is not public yet. All information floating the web right now is based on a single press release by the GEMA.
3. Before that verdict isn´t disclosed, all opinions on how other German filesharing services will be affected are mere speculation. But this is definitely not the first verdict written in a filesharing-related case.
4. It is true that the German judicial system is not based on case law. However, if a high court rules in a particular matter the lower courts will follow immediately. This means that this ruling is not really important, as it is from a pretty low court (the “Landgericht Düsseldorf”), so higher courts will not necessarily follow.
I believe Rapidshare will appeal against this judgment and we´ll soon know more.
Darn, I love rapidshare - sooooooo much better than stupid torrents. I guess its back to newsgroups for me.
Every respectable newspaper in the world will print a retraction, and yet I have never seen that done on TC. This is obviously a mistake and as such should be treated as one. In addition the follow-up comments damage your credibility - you owe an apology to your readers.
atlon,
You completely outsmarted Duncan. I honestly lost a lot of respect for Techcrunch because of Duncan’s response to atlon’s pots. He was just trying to bring up a point about how this post doesn’t really imply anything for German file sharing sites and Duncan goes out and blames Germany’s system of law.
I have a lot of respect for alton and he is clearly the better educated one in this discussion. My respects to you alton for being very professional and sincere in your posts. Just ignore Duncan. I’ll stop reading his posts now too.
Wow, I’ve always wondered why people hated Duncan so much on this blog but it is now very clear. He is an absolute idiot. To lambaste the most common legal system in the world is not only ridiculous but incredibly small minded. Germany, along with a plurality of other nations in the world is a civil law nation, common law nations that you seem to think are superior are in the minority.
As a service here’s a list of all of the nations that you should avoid.
http://en.wikipedia.org/wiki/L.....#Civil_law
Duncan, if you won’t correct the article for us, think of the poor Japanese readers on TC Japan. They just get the translations of the articles and never get to see all the corrections from the English-language comments.
Oh wait, Japan uses that awful civil law. Can’t be supporting that!
Didn’t Michael Arrington go to Stanford Law and and practice law for a couple years? I’d love to see him comment on this. Please, Michael, save the credibility of Techcrunch!
To give Duncan some credit: Germany doesn’t have the same concept of legal precedence as the US on paper, but in reality a decision like this could matter quite a bit, simply because German lawyers are allowed to attach cost notes to their C&D letters that are based on the hypothetical costs of cases going to trial.
So now all they’ll have to do is send tons of C&D letters to smaller file hosting companies, charge them a few thousand bucks and threaten them with much more expensive lawsuits - and you’ll see these services shut down left and right.
Sure, bigger companies like Rapidshare can defend themselves in court, but Joe Shmoe’s hosting will most likely just cave in. And there are quite a few of those …
This is the same strategy that the music industry used to wipe out all links to Allofmp3.com and Slysoft.com in the German web sphere. You didn’t need actual case law precedence for that, a single injunction was just fine.
The respective verdict is not public yet. All information floating the web right now is based on a single press release by the GEMA.
rofessional and sincere in your posts. Just ignore Duncan. I’ll stop reading his posts now t
The court decision will definitively have some affect on the once-click hoster scene. There is no case law, but would you run a shop that might be shut down next week? Sorry guys…don’t try to be lawyers if you are not. Duncan is right: It will have a major impact.
On feedrinse.com you can easily set up a duncan-free TC RSS feed. I registered and configured one in less than a minute. It’s a cool site, BTW.
duncan, what an insult to german systems.
Duncan said “Didn’t the Yanks impose your legal system, or did you guys screw with it along the way?”
Duncan, Schatzi, for somebody who worked for a political party (even if in Australia), you’re pretty ignorant. While “the Yanks” helped us to finally get a stable democratic *political* system (there was a democratic system before 1933), the German *legal* system has been continued after 1945 since only individual laws were problematic. It’s basis is similar to that of all of Germany’s neighbors.
Back to the Rapidshare topic: It’s a decision by a mid-level court (Rapidshare can still appeal), and the PR about the decision mostly comes from GEMA (music industry). This article (from Germany’s best computer mag) http://www.heise.de/newsticker/meldung/96678 tells me that the actual outcome for Rapidshare users is not yet clear — case law or not.
BTW, why don’t we hear anything about the limitations to Internet “freedom” your own party is planning to impose in Australia?
@29, let’s review
1) the decision has yet to be issued. this is another TC article based on a press release
2) civil law v common law
3) another judge 30 miles away has ruled in exactly the opposite way on a very similar case. the legislature will have to sort this out.
so, the thing that is embarrassing is the headline on this post (and the lack of a correction)
So far, I always valued TC for their excellent coverage. However this post leaves a mixed picture and makes me question if this site is really a reliable source of information…
Duncan, I understand that this year its election year for you guys, but - on a topic like that - sorry but I really do not get the point why getting political here?
Its fair to say that I would expect a correction and your personal apologies.
Please! Please! Please don’t close down rapidshare.com.
Ignorant, belligerent, and proud of it. Very classy Duncan.
I read TechCrunch everyday, and can’t believe the response by Duncan on this one, totally off on a tangent and seemed offended by the earlier comments.
I’ll check back in a few days to see if there is any further explanation but otherwise I have lost a lot of respect for TechCrunch and Duncan in particular.
I think this is rediculous. Rapidshare isn’t any different than any other file share, Everyone knows that the main reason these sites exists is to share things that others don’t want to pay for! and everything we share online is basically copyrighted to some one. Unless you are the Creator of whatever the program/game/file etc is, then you’re sharing something wth a copyright.
SO! Should the content that every single Computer user sends online be monitored too? Now how stupid does THAT sound?
I’ll share what I want and with whome I want. If it’s been tossed onto the internet, where anyone has access to it, then in MY opinion, it’s mine to do with what I want.
Doesn’t matter what Country it’s from.
Thanks duncan… for these fine words of wisdom… how about less copy paste and more checking your facts… im not even talking about the german comments thats just ignorance…
Why are you even discussing this matter? Rapidshare was founded in Germany. Yes. But it has very soon moved its headquarters and servers out of the country. It has been in suisse for a very long time. Like yours truly Pirate Bay its situated in a country where no german law can be executed. And as long as Germany isn’t China these sites will not disappear from our internet landmark at all.
One German provider tried blocking some porn sites with shabby protection last year. But even that has been undon as it surfaced. Germany might be one step nearer to Chinese censhorship at the moment, but it still takes around 15 hours on a plane to get the real China feeling. In China.
I’m sorry to have to say this but even if there is no case law in germany there still are decissions made based on other cases, even if there is no set practice to say this is the way to do it. It does not happen often though.
Also sadly, Duncan was somewhat right with his “pot luck” post. Although it is not as extreme as he has put it, luck is very important in the german system (but it also is in the US I’m afraid, since you never know what kind of jury you get in the end).
But there are ways to direct the luck your way. I bet (I did not check, but I doubt its otherwise) the Rapidshare lawsuit was filed in Hamburg (easy to file more or less anywhere since Rapidshare is not located in germany). Hamburg’s court that deceides copyright and similar cases has a track record of agreeing with the copyright owner. Does not matter how stupid their decission is in the end.
A truly childish response by Duncan. It looks like he’s been both drunk and upset about being wrong.
Arrington, get your staff into perspective or you’re losing it.
I really can’t believe what I just read. Duncan’s article and comments are totally inappropriate. I just hope that people will use some other information sources (eg. google news) to get some more truthfull information on this issue.
Well, how are they going to deny access to German users using socks/proxy/private network services like SmartHide.com ? Banning all German users is not an exit in my opinion. There are many law-abiding German internet users who will get hurt. They always have the way to avoid ban though so it’s not critical.
Weird, I’ve always considered the common law system to be totally idiotic, bogus and broken in its basic philosophy! Even immoral! And I’m not even German, I’m Italian! Actually every country in Europe has a system similar to the German one, with the only exception being the UK and Ireland (and I really mean ONLY those two in the whole continent!).
Every country has the legal system it deserves, I’d say!
http://www.checkedsearch.com has just updated its functionality, leaving
behind all other rapidshare search engines: almost no ads, extremly
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combination makes it currently the best rapidshare search engine.
recent updates are really cool, must check it out!