File sharing site RapidShare vs GEMA

The IPKat last week reported on a decision of the Regional Court of Hamburg in which the court fined the file sharing site RapidShare AG 24 million Euro for copyright infringement in respect of 5,000 tracks which had been shared through the site.

The Hamburg court had taken the view that it was the legal "duty" of the hosting service (not the copyright owners) to ensure that no copyright infringement was taking place via the site. In its decision, the court apparently referred to a statement by GEMA, the German performance rights association, which had claimed that the necessary 'scanning' software (which can detect copyright infringing material) was already available.

RapidShare has now issued a press release in which it announces that it will appeal the Hamburg court's decision and if necessary (and/or possible) take this matter to the German Federal Supreme Court and the ECJ. RapidShare disagrees with the court's and GEMA's view and seriously questions how a file sharing site can practically fulfil its legal "duty" to monitor its site for potentially infringing content, particularly when it comes to monitoring hidden data files, checking links and content on an internet forum. Furthermore, RapidShare claims that GEMA did not allow RapidShare to test the scanning software.

The cat on the right attempts to scan the IPKat for infringing content. Image taken from

An interesting case, with potentially far reaching consequences.

File sharing site RapidShare vs GEMA File sharing site RapidShare vs GEMA Reviewed by Birgit Clark on Wednesday, July 01, 2009 Rating: 5

1 comment:

CS Clark said...

Possibly related, the RIAA just won a case against Usenet (specifically, - - which also touches on the substantial non-infringing uses argument.

'Baer said that can't claim protection under the Sony Betamax decision. That ruling says companies can't be held liable of contributory infringement if the device is "capable of significant non-infringing uses."

Baer noted that in citing the Betamax case, failed to see one important difference between it and Sony. Once Sony sold a Betamax, an early videotape recorder, the company's relationship with the buyer ended. Sony held no sway over what the buyer did with the device after that. Usenet, however, maintains an ongoing relationship with the customer and does has some say in how the customer uses the service.'

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