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German courts make domain registrars liable for piracy clients

By | Published on Tuesday 11 February 2014


As we followed The Pirate Bay’s main domain as it moved from country to country last year it became clear that rights owners had identified that one way to hinder the operations of piracy outfits was to go after their web addresses. That is to say, persuade or pressure domain registries or registrars that they should disable the domain names used by sites that enable rampant copyright infringement.

But what are the obligations of domain registries (the organisations that control specific top level domains, like the UK’s Nominet) and domain registrars (companies that manage domain registrations for website owners, like 123Reg and Go Daddy) in this area?

A recent arbitration ruling stated that, while registrars can suspend the domains of customers which they suspect are involved in piracy (mainly because the registrar’s own T+Cs will let them), they can’t prevent that customer from moving their domain management to another company unless a court order bans it.

This arbitration ruling followed letters sent to domain firms last year by the City Of London Police’s IP Crime Unit, which led to some registrars suspending the web addresses of some piracy set-ups, and then preventing them for moving said domains elsewhere. But the arbitrator said they couldn’t do that.

Nevertheless, a recent judgement in the Regional Court of Saarbrücken in Germany ruled that domain registrars do have an obligation to act against websites that exist in order to enable copyright infringement, and if they fail to do so they could be held liable for their customer’s infringing activity.

The case in question related to domain firm Key-Systems and its client H33T, a significant torrent tracker that was knocked offline for a time last September after Universal Music went after its domain, on the back of rampant file-sharing of Robin Thicke’s ‘Blurred Lines’.

Last week’s court ruling confirmed that Key-Systems was obliged to act on the copyright complaint, because had it not done so it could have faced a 250,000 euro fine for infringement. This despite an earlier ruling in Germany’s federal courts that said the country’s actual domain registry, DENIC, was generally not liable for the activities of web operations using its domains.

What isn’t clear from the new ruling – and where this might prove to be particularly controversial – is on what grounds a domain registrar is obliged to act, ie who is to decide whether a website is liable, or not, for copyright infringement. Can a domain firm wait until it receives a court order, or could it be held liable for infringement if it doesn’t respond proactively to any complaint?

Either way, Germany’s record industry trade group BVMI welcomed the recent judgement, with its boss man Dr Florian Drücke telling reporters: “With the current judgment, the Regional Court of Saarbrücken has for the first time clarified the responsibility of a registrar in respect of copyright infringements carried out via a domain registered by him. For rights holders this offers a new protection option to take action against portals with illegal offers on the net”.

But reps for Key-Systems argue that the court made the wrong decision. It’s legal rep Volker Greimann told Torrentfreak: “Let’s just say that this is not the final word on the matter. We are currently reviewing the judgment and our options for having this overturned in the next instance. This judgment makes no legal sense and is full of errors. If this judgment stands, it will have dire consequences for the kind of services German registrars can provide”.