German Court Says Domain Registrars Are Responsible for Content on a Website

http://www.thedomains.com/2014/02/07/german-court-says-registrars-are-responsible-for-content-on-a-website/

91 53 12 years ago

th0br0• 12 years ago

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.

[1] http://www.golem.de/news/landgericht-saarbruecken-domain-reg...

oneeyedpigeon• 12 years ago

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.

thisiswrong• 12 years ago

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.

hoggle• 12 years ago

I'm also thankful for non existing information on non existing technologies:

https://en.wikipedia.org/wiki/Namecoin#Uses

https://github.com/FellowTraveler/Open-Transactions-old/wiki...

us0r3• 12 years ago

People like to complain about laws/regulation/tax/etc. in the US but it is on an entirely different level in the EU.

tluyben22• 12 years ago

Germany is not the EU and this is not final; it'll never pass EU wide nor will it in Germany for that matter.

us0r3• 12 years ago

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.

halfdan• 12 years ago

It is also important to note that in difference to the US court rulings cannot be used as reference for future cases in Germany.

julioademar• 12 years ago

Yea, we're all pretty sane over here.

us0r3• 12 years ago

No way? I thought the supreme court was like ..... supreme?

pjump3• 12 years ago

Exactly.

bowlofpetunias2• 12 years ago

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.

waps• 12 years ago

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.

Snoddas• 12 years ago

Original article is much more informative. http://www.pcadvisor.co.uk/news/tech-industry/3501030/german...

JungleNavigator• 12 years ago

oh..., you are right, I should have submitted that instead (pity I can't change URL now)

qwerta• 12 years ago

And totally different from the post here.

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.

bowlofpetunias2• 12 years ago

Ridiculously misleading headline.

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.

AnthonyMouse3• 12 years ago

There's nothing wrong with that in principle

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.

RogerL2• 12 years ago

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.

pbhjpbhj• 12 years ago

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.

CalRobert• 12 years ago

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.

lucb1e• 12 years ago

Yeah and Mercedes is responsible for my speeding ticket. They purposefully make their cars able to exceed the speed limit of 50km/h inside cities.

SixSigma2• 12 years ago

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."

[1] http://www.waterstones.com/waterstonesweb/products/richard+m...

icebraining• 12 years ago

I don't know about your country, but in some countries there are private race tracks where you can speed legally for a few thousand bucks.

sumedh2• 12 years ago

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.

noblethrasher• 12 years ago

Apparently, the Japanese version of the Nissan GTR has software that limits the vehicle's maximum speed unless it is near a Nissan approved racetrack.

Source: http://en.wikipedia.org/wiki/Nissan_GT-R#Aftermarket_tuning

cwp• 12 years ago

Because gearing that will let you go 100mph will also let you go 70mph at lower RPMs, leading to better gas milage and lower carbon emissions.

ESBoston• 12 years ago

I don't see how this enforcement would be practical.

enscr• 12 years ago

That's like saying the president is responsible for all crimes in the country.

Oculus• 12 years ago

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].

1: http://www.youtube.com/watch?v=mxBaDs0sGPw&t=38m18s - Shopify CEO discussing international expansion.

gurkendoktor• 12 years ago

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.

mariuolo2• 12 years ago

A most dangerous precedent.

It would be nice if common norms in this regard were codified EU-wide.

PythonicAlpha2• 12 years ago

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.

pi-err• 12 years ago

Judges (continental Europe) apply the law. It's a different tradition than common law. They do interpret it though it leads you so far.

My guess is that what those decisions mean is that the law needs a big change, especially on responsibility regime inherited from the Napoleon code.

mtrimpe• 12 years ago

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.

PythonicAlpha2• 12 years ago

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.

Zuider• 12 years ago

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.

German Court Says Domain Registrars Are Responsible for Content on a Website

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