Having content removed from the Internet is a task undertaken by most major entertainment industry companies. While laws differ around the world, the general understanding is that once notified of an infringement, Internet-based companies need to take action to prevent ongoing liability.
A case in Germany involving popular file-hosting service Uploaded.net has not only underlined this notion, but clarified that in some instances a hosting service can be held liable even if they aren’t aware of the content of a takedown notice.
It all began with anti-piracy company proMedia GmbH who had been working with their record label partners to remove unauthorized content from the Internet. The Hamburg-based company spotted a music album being made available on Uploaded so wrote to the company with a request for it to be removed.
“In the case at hand, a notice with regards to some infringing URLs on the file-hosting site was sent to the given abuse contact of the site,” Mirko Brüß, a lawyer with record label lawfirm Rasch Legal, told TorrentFreak.
However, three days later the album was still being made available so the lawfirm sent Uploaded an undertaking to cease and desist. When the file-hosting site still didn’t respond, Rasch Legal obtained a preliminary injunction against Uploaded.
“After it was served in Switzerland, the file-hoster objected and the court had an oral hearing in September,” Brüß explains.
In its response Uploaded appealed the injunction claiming it had never been aware of the takedown notices from proMedia GmbH. Lars Sobiraj of Tarnkappe told TF that Uploaded claimed to have received an empty Excel spreadsheet so didn’t react to it, preferring instead to receive plain text documents or complaints via its official takedown tool.
Rasch Legal later sent another email but Uploaded staff reportedly didn’t get a chance to read that either since an email server identified the correspondence as spam and deleted it.
“We did not believe this ‘story’ but thought they had just failed to process the notice expeditiously,” Brüß tolf TF.
In its judgment on the case the Hamburg District Court found that while service providers have no general obligations to monitor for infringing content on their services, the same cannot be said of infringements they have been made aware of.
However, the big question sat on Uploaded’s claims that it had never been aware of the infringements in question since it had never received the notices relating to them. In the event the Court found that sending the emails to Uploaded was enough to notify the service that infringements were taking place and that it must take responsibility for ending them.
“The Court followed our reasoning, meaning it is sufficient that the file-hoster actually receives the notice in a way that you can expect it to be read under normal circumstances,” Brüß says.
“There is a similar jurisdiction with regards to postal mail, where it is sufficient that the letter has reached your inbox and it is not necessary that you actually read the content of the letter in order for it to take legal effect. So here, we had proved that the takedown notice did reach the file-hoster’s mailserver, they only failed to act upon it.”
A ruling in the opposite direction would have opened up the possibility of other companies in a similar position to Uploaded blaming technical issues each time they failed to take down infringing content, Brüß explains. Instead, file-hosters are now required to respond quickly to complaints or face liability.
“So in essence, file-hosters need to make sure that they attain knowledge of all notices sent to them and act upon these notices expeditiously, or they face secondary (or even primary) liability. Also, the court stated that it does not matter by which means the notices are sent,” Brüß concludes.
