German Court Rules Registrar Responsible For Illegal Content

A German appeals court has ruled registrar Key-Systems is “liable for actions done by the users of a torrent tracking site H33T,” a report in TechDirt notes.”H33T just hosted the torrent (which, we should remind you, is not the actual infringing file), and some users used that tracker to torrent the album Blurred Lines. When H33T failed to respond to a takedown notice, Universal Music went after the registrar, and the court said it was Key-System’s responsibility to stop the infringement. Of course, the only way for the registrar to do that is to yank the entire domain.”Key-Systems appealed the original decision of a lower court, but the appeals court upheld the decision despite Key-Systems saying “it had no way of knowing if the torrent was actually infringing, the court said that the registrar was responsible for assuming it must be infringing once it had contacted the domain owners and not received a response. That’s an interesting shifting of the burden of proof. The court also seems unconcerned that the only way the registrar can remedy the situation is to take everything down, saying that if the website didn’t want this to happen it should have responded promptly to the takedown notices it had received.”In another earlier report, Lawyer Mirko Bruess from Rasch Legal, the firm representing Universal, told Torrent Freak that the decision made perfect legal sense.Key-Systems claimed the infringement was not “obvious”. But “the Court disagreed and states that the registrar had to assume that the claims made by our client were correct after contacting the domain owner (their customer) and not getting any response.””The Court also finds that the registrar was legally and technically in a position to stop the infringement. The domain owner was in a clear breach of the registrar’s TOS by running a torrent-site and not reacting to takedown notices. This gave the registrar the opportunity and the obligation to terminate the service by deleting the name from the DNS,” Bruess added.The court also believes that taking down the entire torrent site was not an excessive response.”The Court’s decision gives rights owners another option in the ongoing fight against the illegal exploitation of their content. We will have this in mind when looking at other domains that use our clients’ content without licensing,” Bruess concluded in his statement to Torrent Freak.The decision is problematic TechDirt says.”For quite some time now, we’ve been concerned about the continued expansion of “secondary liability” concepts, adding more and more liability for copyright infringement to parties who are often far removed from any actual infringement. There are two major concerns with this. First, putting liability on one party for the actions of another just seems generally problematic. But, perhaps more importantly, when you put potential liability on an unrelated party, the end result is almost always excessive policing in a manner that hinders or entirely blocks perfectly legitimate activity and speech.”