While the debate about suitable forms of governance for copyright infringement continues to evolve here in the US, European courts are also struggling to find consensus. In the last week, French and German courts have both been considering the role played by file-hosting services and ISPs in the fight against illegally shared content. They have both come to different conclusions.
The German Position
The German case involved the hosting of an illegal copy of an Atari game by a file-hosting service. The service immediately deleted the files, but didn’t check to see if there were any more copies of the data on its servers. The argument presented in court was that that Rapidshare – the file hosting service – should have done so as a “technically and economically reasonable” measure.
The court accepted this argument as a matter of principle and has tasked an Appeal Court to determine the exact responsibility of services like Rapidshare for taking steps to prevent copyright violations. The court has also not made a decision on how it should do that, merely noting that there are many technical routes, and that any solution has to be reasonable for Rapidshare to implement on an ongoing basis.
Another German court, earlier in the year, ruled that Rapidshare is not required to actively scan uploads. Instead it should, as a matter of governance, monitor links from external sites to the files to spot potentially infringing data.
The French Position
We wouldn’t want to be accused of comparing apples to pears, but the French courts have been ruling on a different aspect – though one that still has implications that are going to take time to work out. The French Final Court of Appeal has overturned two orders that would seem to have supported the German decision, ruling that they conflicted with the E-Commerce Directive introduced in 2000 and the French law on Confidence in the Digital Economy passed in 2004.
In this case, ISPs had been ordered to remove content and then block all attempts to re-upload that content. The appeal, made by an association of French ISPs, contended that this effectively ordered the routine filtering of all content by ISPs.
The general consensus at present is that copyright holders are still required to actively look for and notify file-hosters of infringing content and cannot expect ISPs to do so for them. Part of the acknowledged governance problem is that determining when an ISP or file hosting company has knowledge of the hosting of illegal content is difficult. Under European law, hosting companies are not allowed to monitor their customers’ data.
For now, services like Rapidshare, eBay and Google are all leading the way with the provision of notice-and-takedown forms to simplify and streamline the process for copyright holders. They are being held up as an example of best practice to follow at this time ahead of a public consultation that is being arranged by the European Commission to examine the procedures for notifying online intermediaries of illegal content and how best to act on it. Mechanisms for allowing the flagging of content and even whether this is the best means of governance are sure to be hotly debated.