Liability of Rapidshare for copyright infringements?

The Federal Court of Justice (BGH) had to decide whether Rapidshare is liable for copyright infringements by its users, even though the file-hosting service does not know the contents of the uploaded files.

The computer game company Atari distributes the successful computer game "Alone in the Dark". The file-hosting service Rapidshare offers its users storage space on the Internet, whereby users of the service can upload their own files to the Rapidshare website and make this data available to third parties. Rapidshare does not know the contents of the uploaded files. Certain search engines do, however, allow searches for specific files on Rapidshare's servers.

The computer game "Alone in the Dark" was made publicly accessible by various users on Rapidshare and could be downloaded by third parties free of charge.

Atari regarded this as a copyright infringement and drew the file-hosting service's attention to it.

Rapidshare then deleted the specific file, but did not carry out a review to check whether the Atari game had also been stored on their servers by other users and could still be accessed there. However, Atari demanded precisely this from Rapidshare, sent them a cease-and-desist notice and demanded an injunction.

Court decision

In its decision of 12 July 2012 – Case number I ZR 18/11 the Federal Court of Justice (BGH) ruled that file-hosting services can be held liable for copyright infringements by their users if they have previously been given clear notice of a similar infringement of rights.

In the present case, it was not sufficient for Rapidshare, following receipt of the notice, merely to have blocked the specific file named by Atari. Rather, it had to do everything technically and economically reasonable to prevent – without endangering its business model – the game from being offered to third parties by other users via its servers again. Rapidshare may have breached this obligation because it had not employed a word filter for the compound term "Alone in the Dark" to check the filenames stored with it.

Conclusion

If holders of copyrights discover infringements on file-hosting services such as Rapidshare, they must first notify the service of the infringement of rights. The service must then not only remove the specific infringement, but also do everything reasonable to eliminate essentially identical infringements.