German Internet Service Providers did not give out their customer names in civil cases even before the ruling of the EU court. Copyright infringement is however a criminal offense in Germany which means that the companies file a criminal lawsuit, the State is investigation, getting information about the IP in question and the companies simply take a look into the documents to find out the real name and contact information about that person.

After they get the name they file a civil case and the criminal lawsuit is normally closed because of minor offenses. With the name however they can – and do – sue the user whose IP they detected.

Is copyright infringement a civil or criminal offense in your country ?

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The court basically told Rapidshare to make a distinction between copyrighted and free files on their servers. This would mean that Rapidhshare has to have a master list of all copyrighted files, be it music, film, documents and even dlls to be able to make a decision. Documents, films and music have to be played to be sure that it is indeed copyrighted material because a name could imply that it is but nothings for sure until you checked the file manually.

A simple name comparison is not enough to determine if a file is infringing copyright. Not all files are named properly as well, some are zipped and contain many files, some are secured with a password. How is Rapidshare going to check on all of these files ? They can’t. It is simply impossible to follow the courts order and the judges seem to have taken this into account by saying that Rapidshare would have to follow this order even if it would mean that they had to cease offering it at all.

The order will most likely be appealed and we have seen other outcomes from regional courts that basically said that Rapidshare did not have to take preemptive measures.

Rapidshare will continue operating for now and it could very well take a few years until a final decision has been made by the Federal Court. The solution if the court would rule in favor of the copyright holders would be to either stop the service or move to another country like those DVD copy producers did when German courts hit hard on them.

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GEMA’s Chief Executive Officer Dr. Harald Heker commented: “The Court’s decision confirms that it cannot be the task of the rights owners to control at their own cost the continued operation of services, which generate commercial profit from unlawful use of their works. This decision will also send out a major signal to all services enlisting the help of the individual users to create a comprehensive illegal offer and then in the end to use this offer for generating revenue for themselves”.

Rapidshare announced the same day that they would appeal the ruling. The current ruling would have a drastic impact on every company that would operate from Germany (Europe) offering free disk space to their users. It is also important to note that it would be technically impossible to check every uploaded file if it would violate a copyright. It is for instance perfectly legal to upload a private copy of album to make it available to close friends. How would Rapidshare be able to verify if the uploaded file would violate copyright ?

It is in my opinion ridiculous to demand that Rapidshare, or any other company or individual who are providing webspace, is responsible for the copyright infringements of users who upload copyrighted files to the service. This would essentially mean that every webspace provider could be held responsible of a user would upload copyrighted files to rented webspace.

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