BY MIKE MASNICK
Going back more than five years, we’ve been warning about the dangers of moving copyright enforcement down the stack, away from the actual hosting companies deeper and deeper into infrastructure. This was, of course, part of the goal of SOPA — to make infrastructure companies liable for infringement, and to force them to shut down entire sites. But that’s exactly a key part of our concern. Infrastructure players have only a single remedy: shut down an entire site, including anything that’s not infringing, to deal with claims (never adjudications) of infringing content. And yet, legacy copyright companies have been going after domain registrars for years.
We were particularly troubled by a ruling in Germany back in 2014 saying that a registrar could be liable for infringement on a site using a domain from that registrar. And while it’s taken years, it appears that that ruling has now been upheld by a higher court.
The quick details: Universal Music went after a domain registrar, Key-Systems, in Germany because it had registered the domain name for a torrent site H33t.com. The court forced the registrar to kill the domain, and on appeal that ruling has been upheld, with a specific ruling that a domain registrar can be liable for infringement on a site:
The Higher Regional Court of Saarbrücken concluded Key-Systems can be held secondarily liable for the infringing actions of a customer if it fails to take action if rightsholders point out “obvious” copyright infringing activity online.
This means that, if a site owner is unresponsive to takedown requests, Key-Systems and other registrars can be required to take a domain name offline, even when the infringing activity is limited to a single page.
Some may argue that the impact of this is limited, as the ruling notes two things: first, that liability only applies to a registrar that does nothing in response to notices of infringement, and second, that it applies to “obvious” copyright infringing activity. And that may limit some of the damage of such a ruling, but it opens up a ton of other questions. Are domain registrars now expected to police the content on domains they register? Because that’s often way outside of their areas of expertise, and like most such companies when put in that position, they will default to shutting down (or threatening to shut down) websites, rather than actually taking the time to understand the details and nuances (is it fair use? is most activity on the site non-infringing? etc).
Second, while many people seem to think that copyright infringement is always “obvious,” it is rarely the case. Yes, there are some cases where it could be described as “obvious,” but copyright is very specific and often very much dependent on context. And given how frequently we see people claim copyright infringement where none actually exists, you have to worry about what happens when copyright holders start claiming “obvious” infringement over things that are anything but obvious.
There are two key points here. Somehow, we went from a world in which copyright infringement was something that could only be determined by a court reviewing all of the facts (also known as due process) to one in which all that matters are mere accusations. And, second, by passing off the policing function to infrastructure players rather than the actual (potential) infringers and their hosts, all they have is the nuclear option of completely removing sites from the internet. That’s a dangerous combination and one that will undoubtedly lead to significant levels of censorship.
It’s pretty incredible that two industries — the film and recording industries — who used to pride themselves on their support of free speech, are now two of the leading industries pushing for vast censorship regimes of one of the best engines of free speech ever created.