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Welcome to Web Hosting Sites ReviewsTuesday, October 22 2013 @ 11:48 AM Eastern Daylight Time

German Court Says Host Not Responsible for Proactively Monitoring User Content

An interesting case recently passed through German courts that ultimately ruled that a Web host is not responsible for proactively checking user-uploaded content and to remove copy-right infringing material. The ruling was determined at the Dusseldorf Higher Regional Court.

The case revolved around an instance of copyright infringement: a German film distributor originally filed a preliminary injunction against the Web host, as opposed to the actual user, to stop reproduction and dissemination of illegal copies of a film that are currently held under exclusive distribution rights. At this preliminary injunction, the court ordered the host to block all copyright protected films on its servers.

Attorney Ulrich Reber of the SKW Schwarz Rechtsanwältemade firm wrote an article that outlines the facts, court decision, and legal comment concerning the case. Reber noted that the court eventually came to the conclusion that a Web host is not responsible for its user content because “defendant's business model as “neutral,? noting that the intention of the defendant's business model is to provide services for legal uses - and that these services are used legitimately for the most part. Because copyright abusers were so marginal, the court found no need for stricter measures than those already taken by the defendant,? as reported by Web Host Industry Review.

By filing against the Web host, an interesting question was posed: who is responsible for uploaded material, the user or the Web host? Is a Web host liable for the content of its users? If so, how can a Web host properly monitor and censor infringing material?

Struan Robertson took up the subject in a recent opinion piece for the IT and e-commerce legal news site, He noted that the general pattern for Web hosts is that until they are alerted to a problem, they are not responsible for pro-actively monitoring content; instead, they take a responsive and reactionary role. Although Web hosts are generally required to remove content after they've been alerted, “their exemption until that point,? writes Robertson, “is what makes possible many of the services we take for granted.?

Robertson is keen to point out that Europe's current system lacks a defining court cases that outlines Web hosts' responsibilities for their users' actions. The concept both Europe and the US are working with rests on the responsive action taken after a Web host has acquired "actual knowledge" of infringement. What becomes more complicated, however, is when the concept of "constructive knowledge" is applied.

West's Encyclopedia of American Law, edition 2 defines constructive knowledge as: “That which exists, not in fact, but as a result of the operation of law. That which takes on a character as a consequence of the way it is treated by a rule or policy of law, as opposed to its actual character.?

Web Host Industry review summed up this technical term in the following way: "This means that, for instance, having the key to a safety deposit box is constructive possession of the contents of the box, given that the key gives its owner control over the contents. Applied to Web hosting, this could either mean that a Web host is like a bank and its customers have constructive possession of the contents of their safety deposit box - in this case their files - or the Web host could be responsible for checking that stolen items - copyrighted media - do not find their way onto their premises."

The Dusseldorf Higher Regional Court ruling could potentially set a precedent on how Web hosts can expect to deal with user content in the future, creating the basis of a more well defined understanding of responsibility for managing infringement.

To read more about Web hosts' responsibility of user action and content, read the Web Host Industry Review write up, check out attorney Reber's summary of the case, or read up on on Robertson's commentary on Web hosts' responsibility toward user-uploaded content and the legal implications surrounding it.

Tag: web hosts legal germany user-content

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