“Rapidshare” and the future of file-hosting
File- sharing is a burning topic. So is file- hosting. If recently the world- wide known site Megaupload was forced to shutdown, a recent ruling, in which another file- hosting website by the name of Rapidshare was involved, will not leave us indifferent.
In the “Rapidshare” case, the Higher Regional Court of Hamburg has ruled (in Germany) that the business model set up by this Internet Service Provider (ISP), consisting in hosting files uploaded by internet users, is a completely lawful and legal type of business. Given this ruling, the Higher Regional Court of Hamburg comes to follow the steps taken by the Court of Justice of the European Union (CJEU) in its judgement of 16 February 2012, C-360/10, “SABAM” declared that “issuing an order mandating the use of a filtering system where all subscriber communications are routinely monitored for infringements, not only on currently protected works but also those in the future, would be disproportionate and fraught with difficulty”. Such an order would be incompatible with Directive 2000/31 on electronic commerce.
What in our opinion is innovative in the ruling is the fact that Rapidshare is asked to watch closely the external sites that link to copyright-protected files hosted on its servers. If such links are found, Rapidshare is obliged to block access to the infringing material and to delete it.
Rapidshare´s disappointment for the decision is easy to understand, especially since the company provided evidences they have tried very hard over a long period of time (apparently, years) to become a “copyright- friendly” site, by implementing measures to ensure that copyrighted works are not infringed. This is one of the reasons why the company will appeal the decision before the Supreme Court.
In our opinion, the decision taken by the German Court is to be welcome for the benefits it provides to the protection of IPR in the digital environment. However, a uniform approach to digital piracy is needed due to the implications it has for file-hosting and cloud computing industries. Directive 2000/31 seems to be outdated. France (Loi HADOPI), Spain (“Ley Sinde”) and now Germany have adopted different solutions to face the problem of digital piracy. In addition, the ratification and subsequent implementation of the Anti-Counterfeiting Trade Agreement may also imply the adoption of different solutions by the Member States. It seems like it’s about time for the Commission to make a proposal to update the existing regulation in Directive 2000/31. In Salvador Ferrandis and Partners, we are closely following the preparatory works of such a proposal and we will keep you inform of any development.