No, this is not what the court has said. In fact they pretty much explicitly said the opposite, i.e., in principle they are not liable.
The court has said that a supplier that clearly knows that it is supplying services to an illegal operation should stop supplying those services.
There's nothing wrong with that in principle, it is applied to all kinds of things. The problem comes when it is applied to alleged copyright infringement, and it becomes even more problematic when it's indirect, like with torrent indexing sites.
That is something that is very difficult to ascertain, and it should not be left up to ISP's, registrars, telco's and alike to decide whether or not copyright infringement is going on.
There kind of is. It's making the assumption that an "illegal operation" is a binary thing deserving of absolute condemnation. It isn't saying that you can't, for example, sell a counterfeiter a money press, but rather that you can't provide him (or any other "criminal") with a loaf of bread, or a tank of gas, or a room for the night in winter, or a phone, etc. It's practically a death sentence without even a trial, and on top of that it makes no allowance for the proportionality of the sanctions to the alleged offense. Sorry, you're a known litterbug, no one may sell you insulin for your diabetes.
And so it is with domain names. You turn off somebody's domain name, you're taking away their forum to inform the public of your error in wrongly accusing them of misconduct. You're turning off their email and disabling their ongoing correspondence with their attorneys and their community. It's blanket censorship. You're not turning off their infringing operation, you're turning off their existence in the communications network. And to the extent that you aren't, the sanctions will be ineffective at preventing the alleged misconduct. As a policy it makes no sense.
No, you've shut down that one domain, not made it impossible for them to own legal domain names, or otherwise be on the internet. Not that I agree with the law, but you seem to be rather overstating the repercussions.
If I was renting to you, and found out you were cooking and distributing meth in the house, I would evict you. That would not mean you could never live in a house again, just that you can't do your crime on my property.
> No, you've shut down that one domain, not made it impossible for them to own legal domain names, or otherwise be on the internet.
Haven't you? If you shut down example.com and they go out and buy example.net and point it back to their website, the registrar would be obliged to do the same thing with example.net, would they not?
Moreover, the ability to get another name is kind of the point: Evaluate the two possible alternatives. On one hand, say it's easy to disseminate the new name (or your IP address) to everyone you may want to communicate with. Then taking away the domain name is ineffective to prevent the alleged misconduct, so there is no reason to do it. On the other hand, suppose that it's difficult to let everyone know the new name. That presents the other problem: A million people come to example.com and you have a platform where you can tell them what's going on and why the accusations against you are false; replace example.com with a page of unproven allegations against you and now your audience has no way to hear your side of the story because they don't know where to find you.
> If I was renting to you, and found out you were cooking and distributing meth in the house, I would evict you. That would not mean you could never live in a house again, just that you can't do your crime on my property.
I don't think you're distinguishing between what you're allowed to do and what the law obliges you to do. If you evict someone because you don't want to rent to a meth cook then that's all well and good, they can go live somewhere else and rent from someone else. But if the law prohibits anyone from renting to someone thought to be a meth cook then where is an accused meth cook supposed to live?
That's not what the law says though. It only says that if I'm renting to you and I find out that you're cooking meth I should evict you; not that I should refuse to rent to you because I heard you've cooked meth. I'm responsible for meth being cooked on property I own, whether it's me cooking or not.
In the same way, if I find out you're doing something illegal (file sharing for example), I should stop you.
> It only says that if I'm renting to you and I find out that you're cooking meth I should evict you; not that I should refuse to rent to you because I heard you've cooked meth.
How are you distinguishing between those two things, "I find out that you're cooking meth" and "I heard you've cooked meth"? They appear to be the same thing. The tense doesn't get you anywhere because unless you only have to evict the person at the very second you catch them in the act, any such eviction has to be based on historical behavior. And under the silly instantaneous interpretation the eviction would only be necessary for so long as the criminality is ongoing -- you must evict but as soon as the criminal is finished with crime for the day (or claims to be) then he can move right back in? That would be nonsense.
Maybe your point is that "finding out" requires more evidence than "hearing" -- which really gets to the heart of it, doesn't it? Private parties aren't judges. They don't have all the evidence, they don't have a perfect (or for that matter even remotely accurate) knowledge of the law, they're biased and prejudiced and are highly likely to be heavy handed when the alternative is to have to fight somebody else's fight. It's imposing the duty to enforce the law on people with no capacity or inclination to do it properly.
I have always wondered why one is able to sell a car that can go over 100mph when the maximum speed allowed on the roads in my country is 70mph and being caught going 100mph will land you in jail.
We already know people cannot be trusted to "do the right thing" so high speed incidents will, and do, occur.
As Richard Miller wrote in SQUED [1]
"Show me a man that has never broken the law and I'll show you a man that has never driven a car."
Seconed - in the US, motor clubs often rent out racetracks for High Performance Driver Education (HPDE) days; costs around $500 for a few hours of track time in your own vehicle, optionally with an instructor. It's a lot of fun and educational indeed.
> I have always wondered why one is able to sell a car that can go over 100mph when the maximum speed allowed on the roads in my country is 70mph and being caught going 100mph will land you in jail
What if you are rich and you have your own private road where you can drive at any speed you want.
Then you build yourself a not licenced for the road race car - just like so many other people who race. You don't even have to be close to rich to do that.
As other people here addressed correctly: That ruling is not final.
But it is true, that particularly lower German courts (some names are in the news again and again) have a long record of decisions that just show one thing: Many German judges have completely not understood computers and the internet. While judges might not needed to in general, they at least should take advice -- possibly by their own grandson? -- before they just make that kind of decisions.
It is right, that in continental Europe, there is less freedom to judges interpreting the law. In theory they are bound to the law and have no own judging freedom as in the US.
BUT: This is theory. When you see the details of many decisions (I did not look into this one), there is still plenty of freedom to "interpret" the law. Also what they have to do is, analyse the situation to interpret the law. When the analysis is wrong, the decision comes out wrong. In many cases, the analysis just showed up plenty of disregard of computer reality.
One example lately happened, when a judge thought, that it would be possible to prohibit the viewing of images without the surrounding html file. Everybody with some knowledge of internet knows, that it is not! Thus the judging came out ridiculous ... it must still be challenged.
I don't want to defend German laws of course -- they are oftentimes ridiculous to! But there are just plenty of cases, where no law regarding computer techniques plainly exist. Then judges have to go by common law and interpret it for computer usage ... and there the situation analysis is crucial.
Judges in the common law tradition are also obliged to apply the law as written (whether they like it or not). The expression 'interpret the law', when referring to a judge's duties still holds its original legal meaning and intent of simply reading the law as written. This sense of the word 'interpret' came from a time when literacy was rare, and reading was seen as 'interpreting' mysterious symbols on a parchment. Judges do have legitimate leeway to 'interpret' in the modern sense when it is not clear how the written law applies to a given case, but even then they are expected to do this in good faith: they are expected to make the old law apply to the new situation, not to make new laws (i.e. judicial activism), which is outside of their remit.
Laws are also usually changed by a lower judge deliberately deciding to interpret a law literally, which will mean it gets passed on to higher courts with the authority to (initiate) changes to the law.
Not saying that is the case here though, but in law things are often not directly what they seem.
Thank god there's no other way to address a server on the Internet, and that this measure will once and for all stop all copyright infringements, whilst being utterly implementable and policable.
And thank the lord that governments like those of the UK don't already send out unlawful extrajudicial domain termination requests to registrars. Thank god systems like NameCoin and P2P distributed websites are not being developed as we speak by internet visionaries.
> The Federal Court of Justice in Karlsruhe had already ruled that DENIC is generally not liable for rights violations, the verdict showed.
> However, the Regional Court of Saarbrücken found that the rights violations of h33t.com were obvious and easy to identify, said Brüß.
> Since the album was still shared through h33t after several requests sent to the website's operator by Key-Systems to stop the infringing activity, the registrar had to act to stop the infringement, the court found.
This ruling is not final yet, and Key-Systems is likely to go into revision. (see [1], German)
Especially the consequences this would have for DNS changes etc., it is highly unlikely that a higher instance won't overturn the ruling although IANAL.
People like to complain about the EU without understanding what the EU is.
Hint: none of this has fuck all to do with the EU. Germany is a sovereign nation.
Edit: And at least this is happening in a proper legal process (which is far from over). It doesn't even come close to the FBI barging in and hijacking domain names of foreign sites without any form of legal process.
Not at all. A sovereign nation is a nation that has an organisation that decides what it wants to do that cannot be overridden (like the Bundestag).
In practice the Bundestag has the following demands foisted upon it by the European constitutaion :
1) the European commission can suspend any law, or any number of them, with immediate effect.
2) the European commission can force the Bundestag to enter any text it damn well pleases into law.
3) the European commission can override any legal decision made inside Germany's courts, and can lift any existing case to the European level (where the justices are appointed by the same people who appoint people into the European commission)
4) The European commission can sign treaties in the name of Germany. These treaties have been, in jurisprudence, declared to superseed national law. It has not currently been tested, but in theory they can also superseed the German constitution.
Incidentally, the elected part of the EU, the parliament, does not have any real influence.
Given these, I think it's pretty bloody obvious that Germany is not a sovereign nation. Look at the Germany vs Amazon debacle to see further proof of this.
Germany is the epitome of the EU. Pass or not Germany and the EU has way more regulation then the US. My point was people who like to complain about regulation here should take a peek across the pond.
We definitely have too much regulation for companies here, but on the other hand you cannot really gain much with lawsuits as everyone does kind of act to what is common sense. Unless you did something which is obviously wrong (defraud taxes, steal actual money), no matter what comes out of court usually doesn't impact much / anything for companies. Unlike the US I believe.
My impression is that EU countries have annoyingly too much regulation for businesses and tend to afford individuals much more freedom than people have in the US. In the US, it seems to be the other way around.
Why would that be bad? The point of regulation is to prevent market inefficiencies, abuses, scams and similar. Regulation is the reason EU customers know how much they will pay for items (VAT included), know what the final flight prices will be, can have mobile subscriptions costing less than 25€ per month, get vacation, sick days and pregnancy leave, ...
Well, they may have the last word in some cases. But no judge is ever bound to act according to a supreme court judgement. They might do so, but they don't have to. To make decision permanent, the parliament has to pass a law.
Courts within Civil Law systems are there just to interpret and enforce the law, not to create it. What individual courts decide is not binding on anyone but the involved parties.
>A domain name registrar can be held liable for the copyright infringements of a website it registered if it is obvious the domain is used for infringements and the registrar does nothing to prevent it, the Regional Court of Saarbrücken in Germany has ruled. //
The court is going to have to define what "obvious use of a domain for copyright infringement" means in order for companies to make such a decision.
For example a torrent tracker isn't copyright infringing, it may be considered in court to be a contributory infringement [? don't know German caselaw on this?] but that's a non-obvious call for a company to make without the benefit of expert advisers.
Trackers point to [not exclusively] infringing material, like Google/Bing point to infringing material.
Indeed it may be impossible for a tracker host to establish the legality of any particular torrent without court powers to seize evidence and call witnesses and such.
This isn't the first time the German government is doing something like this. Previously, they've established laws that dictate the way in which buttons must be presented on ecommerce websites[1].
Except this time it wasn't the German government but a single (local) judge - whereas the "Buttongesetz" was indeed promoted by the federal minister of justice, who was trying to address end-user complaints.
A better comparison would be that people with an open WiFi are liable for what their users do in Germany. Which means that small shops rarely offer WiFi, and large chains track people's identities as if they were Google.
Interestingly, this sort of request isn't limited to registrars. I did a bit of work with a registry for some new gTLD's (not a program I support; my former employer became involved in the business) and they had already planned for dealing with takedowns of domains at the registry (not registrar) level.
No, this is not what the court has said. In fact they pretty much explicitly said the opposite, i.e., in principle they are not liable.
The court has said that a supplier that clearly knows that it is supplying services to an illegal operation should stop supplying those services.
There's nothing wrong with that in principle, it is applied to all kinds of things. The problem comes when it is applied to alleged copyright infringement, and it becomes even more problematic when it's indirect, like with torrent indexing sites.
That is something that is very difficult to ascertain, and it should not be left up to ISP's, registrars, telco's and alike to decide whether or not copyright infringement is going on.