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New German court decision on traffic filtering

A Higher Regional Court in Hamburg ruled on 14 March 2012 that the file-hosting site RapidShare had to proactively filter the files uploaded by its users. 

A court's press release stated RapidShare was required to block its users from uploading a list of 4 000 files allegedly infringing copyrights.

The present ruling comes to confirm three separate previous rulings by a lower court in cases brought by German booksellers, book publishers and a music rights group. "The judgement confirms that Rapidshare must take effective measures against the use of illegal content on its service," said a German bookseller's association.

RapidShare's spokesman Daniel Raimer explained that the copyright holders were leaving out essential details of the court ruling that were actually quite positive for the site. "There is a possible reason for the rushed approach, particularly that of the Booksellers Association. In the hearing, the Higher Regional Court indicated that it would deviate from its former position under which RapidShare's business model was not tolerated by the legal system."

The German verdict appears to be in contradiction with a ruling by the European Court of Justice (ECJ) which ruled in February 2012 in the case Sabam vs. Netlog that hosting sites could not proactively filter copyrighted content because that would violate the users' privacy and hinder freedom of information.

ECJ decided that a national court is precluded from issuing an injunction against a hosting service provider which requires it to install a filtering system "capable of identifying electronic files containing musical, cinematographic or audio-visual work in respect of which the applicant for the injunction claims to hold intellectual property rights, with a view to preventing those works from being made available to the public in breach of copyright" with the purpose to filter information "which is stored on its servers by its service users; which applies indiscriminately to all of the users as a preventative measure; exclusively at its expense and for an unlimited period"

RapidShare has not yet decided whether it would appeal the verdict and is probably waiting for the written decision to be made public.

Source: EDRI-gram „New German court decision on traffic filtering“ Number 10.6, March 28, 2012

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