GEMA sued successfully against the operators of Rapidshare before the Federal Court of Justice. The Society for Musical Performance and Mechanical Reproduction Rights convinced the BGH’s competent civilian department that 4,815 music downloads on the file hosting platform violate copyright law. Rapidshare is liable for various reasons and not only has to remove the defendant links, but also has a number of obligations from now on.
About GEMA Rapidshare: copyright experts in the interview
Rapidshare is now continuing to ensure that the 4,815 files complained of by the GEMA are not back on their own servers and are publicly accessible via so-called link collections and other sources. This includes file sharing websites, search engines like Google and social networks such as Facebook or Twitter. For this purpose, it may be necessary to use so-called web crawlers to check whether existing files and sources can not be found further downloads that could violate copyright law. The same is true for other files, which are now objected to by rights holders.
About Christian Solmecke and Wildeburger & Solmecke
Guide: Rapidshare comfortably use
The business model of file hosting is not illegal in itself. According to BGH, the problem arises when a supplier favors and promotes copyright infringements through his business model. According to the BGH, the operators of Rapidshare have made themselves punishable for two reasons. On the other hand, they offer unlimited free space, which is anonymous - this is particularly attractive for robbery. For free-of-charge users, there is a download speed lock that can be canceled by completing a paid premium membership.
On the other hand, the sale of these premium memberships was the only source of revenue for the operators of Rapidshare. The sales could be increased significantly, especially in the interplay between the "massive sale" of those memberships, the attractiveness of illegal downloads per se and the anonymously usable use of the exchange platform. Rapidshare is used in the same way as other file hosts, which operate similarly (eg Upload.to, Share-Online.biz, etc.), not exclusively for illegal purposes. The operators of Rapidshare assume an abuse rate of five to six percent, as stated in the Federal Court's report on the case of GEMA against Rapidshare.
We have addressed ourselves to the lawyer Christian Solmecke from Wildenburger & Solmecke in Cologne with questions arising from current developments. As the author and the Internet law expert assess the judgment, the consequences for the industry as well as the customer, read the following short interview.
PC Magazine: Do you agree with the BGH judgment and its justification?
Solmecke: From my perspective, this judgment is very far-reaching. In the end, this is confirmed by the previous instance [GEMA was successful in two previous instances against Rapidshare, editor's note], nevertheless it is still unclear which duties the operator has in the future. On the other hand, it is certainly a victory for Rapidshare to the extent that a liability as an offender of the copyright infringement was not accepted. This means that Rapidshare has to prevent future copyright infringements of a special work, but can not be obliged to pay any damages claims. Such claims would certainly have meant the ruin of the service. PC Magazine: How do you rate the judgment? Especially with regard to the now permanent control duties for Rapidshare. Solmecke: So far only a press release is available. The exact consequences of the judgment can not yet be assessed. It is only to be hoped that the judges will make the effort and precisely define the control duties in the verdict. Otherwise, a legal horror would have been created that would put any vendor of space on the Internet into a problematic situation. So the question arises as to what the relevant link resources are. Is there a predefined list for Rapidshare? How many search queries do Google have to perform? Is there any manual inquiries or technical search queries? All these questions will certainly be the focus of storage providers and the courts in the future.
PC Magazine: What are the consequences for other file hosts?
Solmecke: Apparently, the court here seems to want to turn off the special situation that exists at Rapidshare. At least in the press release, it is emphasized that Rapidshare has favored copyright infringements. This may have worsened the control duties of the service. For the "normal" storage provider would mean that the control duties may not be so far-reaching. For this purpose, the exact justification must be awaited. It is therefore only to be hoped that this judgment was coined by the special situation, which was undoubtedly the case at Rapidshare, and could not be transferred one-by-one to another file host.
PC Magazine: What changes for Rapidshare users and customers, what users of other file hosts?
Solmecke: For the users still applies that the uploading of copyrighted works is illegal, if the links to these works are distributed later on the Internet. The latest judgment does not alter this situation either. I also do not believe that the verdict will lead to a reduction in illegal offers on the Internet. Rapidshare was one of the few services which did not hide, but openly disputed the legal disputes. Now I expect the illegal offerings to grow in a gray area and their servers will not be located in the United States or a European Union.
PC Magazine: Thanks for the interview to the law firm Wildeburger & Solmecke!
The Cologne firm WILDE BEUGER & SOLMECKE specializes in consulting the online industry. Ten lawyers work in the law firm. Christian Solmecke (36) has steadily expanded its Internet law and e-commerce business over the last few years. He is responsible for numerous media-making and web 2.0 platforms. In addition to his chancery, Christian Solmecke is also Managing Director of the American Institute for Communication and Law (DIKRI) at the Cologne Business School. He is particularly concerned with legal issues in social networks. Prior to joining Solmecke, Solmecke worked for several years as a journalist for Westdeutscher Rundfunk and other media.
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