Saturday 8 February 2014

German court find domain name registrars must act on client's infrigements

PC World reports that the Regional Court of Saarbrücken in Germany has ruled that 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 in a case between Universal Music and Key-Systems, the German registrar of the domain name for, a torrent tracker site which had shared Robin Thicke’s album and single Blurred Lines

Key-Systems argued that it was not responsible for the copyright infringement and that it was only providing a technical service, but the court ruled that a registrar had a duty to investigate having been notified of infringing activity, and had to take corrective action in case of obvious violations -and close the domain if necessary.

It seems that Universal had demanded that Key Systems deactivate the domain:  Volker Greimann, Key-Systems’ General Counsel told PC World "The courts’ definition of what is obviously violating is however extremely broad and the duty to act is expanded to deactivation of the entire domain even if only one file or link is infringing,” adding "If left unchallenged, this decision would constitute an undue expansion of the legal obligations of each registrar based in Germany, endangering the entire business model of registering domain names or performing DNS addressing for third parties”. 

The Federal Court of Justice in Karlsruhe had previously ruled that DENIC (the central registry for all domains under the .de top level domain, similar to Nominet in the UK) is generally not liable for infringement, and that DENIC could be liable but only where notified and the infringement was obvious and readily identifiable - at a specific domain.

Key-Systems faces a maximum fine of €250,000 (US$339,000) if they d not apply the court's ruling. Key-Systems is currently reviewing the decision and considering its options for an appeal.

It's interesting that the German courts seem to be asking registrars and registries to 'make up their own mind' about what might be "obviously violating" - not least on what is and isn't infringing: From Betamax machines to Amstrad dual cassette decks to download software to websites - this definition has troubled the courts for decades - and continues to trouble. And let's not forget the recent spat about the letters sent out by the City of London Police's IP Crime Unit to domain name registrars hosting suspected "infringing" websites: Canadian domain registrar easyDNS recently published a National Arbitration Forum ruling which seems to be in it's favour in relation to the domains that were blocked by Public Domain Registry in response to a letter from the City Of London Police's Intellectual Property Crime Unit. Having heard that the IP Crime Unit was not a court of law, the Arbitrator charged with the task of considering this dispute ruled in favour of easyDNS saying "No court order has been issued which would prohibit the transfer of the domain names at issue from the Registrar Of Record to the Gaining Registrar. Therefore, there is nothing in the Transfer Policy which authorises the Registrar Of Record to refuse to transfer the domain names". The ruling continued: "To permit a Registrar Of Record to withhold the transfer of a domain based on the suspicion of a law enforcement agency, without the intervention of a judicial body, opens the possibility for abuse by agencies far less reputable than the City of London Police". 

Here it seems that German registrars are expected to be the enforcement agency - AND make the decision of the court.

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