German Court Says Domain Registrars Are Responsible for Content on a Website
thedomains.com
thedomains.com
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.
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.
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.
Haven't you? If you shut down example.com and they go out and buy example.net and point it back to their website, the registrar would be obliged to do the same thing with example.net, would they not?
Moreover, the ability to get another name is kind of the point: Evaluate the two possible alternatives. On one hand, say it's easy to disseminate the new name (or your IP address) to everyone you may want to communicate with. Then taking away the domain name is ineffective to prevent the alleged misconduct, so there is no reason to do it. On the other hand, suppose that it's difficult to let everyone know the new name. That presents the other problem: A million people come to example.com and you have a platform where you can tell them what's going on and why the accusations against you are false; replace example.com with a page of unproven allegations against you and now your audience has no way to hear your side of the story because they don't know where to find you.
> 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.
I don't think you're distinguishing between what you're allowed to do and what the law obliges you to do. If you evict someone because you don't want to rent to a meth cook then that's all well and good, they can go live somewhere else and rent from someone else. But if the law prohibits anyone from renting to someone thought to be a meth cook then where is an accused meth cook supposed to live?
How are you distinguishing between those two things, "I find out that you're cooking meth" and "I heard you've cooked meth"? They appear to be the same thing. The tense doesn't get you anywhere because unless you only have to evict the person at the very second you catch them in the act, any such eviction has to be based on historical behavior. And under the silly instantaneous interpretation the eviction would only be necessary for so long as the criminality is ongoing -- you must evict but as soon as the criminal is finished with crime for the day (or claims to be) then he can move right back in? That would be nonsense.
Maybe your point is that "finding out" requires more evidence than "hearing" -- which really gets to the heart of it, doesn't it? Private parties aren't judges. They don't have all the evidence, they don't have a perfect (or for that matter even remotely accurate) knowledge of the law, they're biased and prejudiced and are highly likely to be heavy handed when the alternative is to have to fight somebody else's fight. It's imposing the duty to enforce the law on people with no capacity or inclination to do it properly.
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...
What if you are rich and you have your own private road where you can drive at any speed you want.
Or you could just buy any car which you like and not waste time building one.
Source: http://en.wikipedia.org/wiki/Nissan_GT-R#Aftermarket_tuning
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.
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.
Not saying that is the case here though, but in law things are often not directly what they seem.
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.
https://en.wikipedia.org/wiki/Namecoin#Uses
https://github.com/FellowTraveler/Open-Transactions-old/wiki...
> 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.
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...
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.
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.
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.
1: http://www.youtube.com/watch?v=mxBaDs0sGPw&t=38m18s - Shopify CEO discussing international expansion.
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.
It would be nice if common norms in this regard were codified EU-wide.