Germany’s highest court said Internet service providers could be made responsible for blocking websites offering illegal music downloads, but only if copyright holders showed they had first made reasonable attempts to thwart such piracy by other means.
The federal Supreme Court dismissed two cases brought by music rights society GEMA against Deutsche Telekom and music companies Universal Music, Sony and Warner Music Group against Telefonica’s O2 Deutschland.
It said on Thursday the plaintiffs did not make enough effort to halt the copyright violations in the first place but it said Internet service providers could in principle be held responsible for blocking music illegally available on the Internet, even if the content remained available elsewhere.
GEMA, which acts to protect the rights of the owners of musical works, had demanded that Deutsche Telekom, Germany’s largest telecoms company, block the website “3dl.am” because it offered access to copyright-protected music.
In a separate case, the music companies wanted O2 Deutschland to block access to “goldesel.to,” part of the eDonkey network, a peer-to-peer file-sharing network for music.
The court said in its ruling: “The company that offers Internet access will only be held responsible for blocking the site when the copyright holder has first made reasonable efforts to take action against those who have themselves infringed their rights, like the website operators, or those who have enabled the infringement, like the Web hosting providers.”
The music industry says it loses billions of dollars every year from the illegal downloading of songs, depriving it of the revenue it needs to pay songwriters, artists and talent scouts.
Courts around the world are grappling with the question of who is responsible for copyright infringement through illegal downloads. Google’s YouTube, for example, has been the subject of multiple court cases.
A German court ruled in July that YouTube was only responsible for blocking copyright-infringing videos when they had been brought to its attention, and could not be expected to scan everything on the site.
Deutsche Telekom welcomed the court ruling. “The Supreme Court has clearly stated that with regard to Internet service providers the reasonableness of a potential blocking has to be subject to strict scrutiny,” the company said in a statement.
Bernhard Rohleder, director of IT industry group Bitkom, said: “The blocking of websites should remain the last resort of network policy. As a measure against copyright infringement, it is quite excessive.”
O O O
I would not worry too much about this ruling; it will very likely soon be overshadowed by a ruling from the European Court of Justice.
The Netherlands’ high court has found itself in a similar position with respect to injunctions that required Dutch ISPs to block The Pirate Bay. Stymied by legal arguments that such blocks violate the ISPs rights under European law, a couple weeks ago that court punted the case. It asked the European Court of Justice for a ruling on “whether The Pirate Bay’s actions infringe European copyright laws and to what extent a court can order internet providers to block subscribers access to illegal websites”.
And just so we’re on the same page, the Dutch court is asking whether third-parties like ISPs can be forced to take action to fight piracy which is not occurring on their service but is instead simply passing through their servers.
The ISPs in question aren’t being held responsible for their actions, or the actions of their users, but instead are being forced to take action against piracy committed elsewhere on the internet.
A lot of legal experts, including even the Dutch advocate general, have a problem with that idea, which is why it ended up before the ECJ.
That ECJ ruling, when it is handed down some time in the next year to 18 months, is going to trump whatever the German courts decide and set legal precedent in the EU.
(reporting from Reuters, with commentary by Nate Hoffelder)
image by jeff_golden