Rapid Share - Legal Issues

Legal Issues

Views on RapidShare differ to a great extent. On 19 January 2007 the German performance rights organisation GEMA claimed to have won a temporary injunction against both RapidShare.de and RapidShare.com. "The latter is said to have used copyright protected works of GEMA members in an unlawful fashion."

RapidShare started to check newly uploaded files against a database of files already reported as illegal. By comparing the files' MD5-hash the site would now prevent illegal files from being reuploaded. While this would be sufficient under United States law, it was later established in court that under German law it is not. That decision forced RapidShare to check all the uploaded files before publishing them.

In April 2009 RapidShare handed over to major record labels the personal details of uploaders who uploaded copyright-protected files. The incident is reported to have arisen due to a leak of a pre-release copy of metal band Metallica's Death Magnetic album.

A month later, RapidShare stated on their website that "we will not spy out the files that our clients faithfully upload onto RapidShare, not now nor in future. We are against upload control and guarantee you that your files are safe with us and will not be opened by anyone else than yourself, unless you distribute the download link."

Six global publishers have obtained an injunction against Swiss-based RapidShare AG. Plaintiffs in the case were Bedford, Freeman and Worth Publishing Group, LLC a subsidiary of Macmillan; Cengage Learning Inc.; Elsevier Inc; John Wiley & Sons, Inc.; The McGraw-Hill Companies, Inc.; and Pearson Education, Inc. The judgment handed down by a German court in Hamburg on February 10, 2010, and effective on February 17, 2010, ordered RapidShare to implement measures to prevent illegal file sharing of the 148 copyright-protected works cited in the lawsuit, which was filed on February 4, 2010. The court ruled that RapidShare must monitor its site to ensure the copyrighted material is not being uploaded and prevent unauthorized access to the material by its users. The company will be subject to substantial fines for non-compliance.

The US government's congressional international anti-piracy caucus stated that the site was "overwhelmingly used for the global exchange of illegal movies, music and other copyrighted works".

By contrast, the Düsseldorf higher regional court has twice overturned injunctions filed by the German film and DVD rental company, Capelight Pictures (Ref. I-20 U 166/09; I-20 U 8/10). The court declared that the file hoster could not be held liable for publication of copyright protected material by third parties and revoked the injunction initially upheld by the Düsseldorf district court in the main proceedings. The court also indicated that a file hoster is not obliged to use a word filter as this would also prevent legal copying for private use.

In May 2010, the District Court Southern District of California, in its legal case (09-CV-2596H WMC) between the publisher of an online erotic magazine and RapidShare, rejected the filling of a temporary injunction against the file hoster. The presiding judge turned down the application because the plaintiff failed to make a credible case for a direct infringement of copyright or for RapidShare having supported copyright violations.

In the 2009 - 2010 legal case Atari Europe S.A.S.U. v. Rapidshare AG in Germany, the Düsseldorf higher regional court reached the conclusion on appeal that "most people utilize RapidShare for legal use cases" and that to assume otherwise was equivalent to inviting "a general suspicion against shared hosting services and their users which is not justified".

The court also observed that the site removes copyrighted material when asked, does not provide search facilities for illegal material, noted previous cases siding with RapidShare, and after analysis concluded that the plaintiff's suggestions for preventing sharing of copyrighted material were "unreasonable or pointless". It also judged that RapidShare could not be held liable for copyright infringements by its users, and that while the service was legal, a minority of illegal use could not be prevented by other measures proposed - for example keyword-based filtering (which would prevent legal use), manual review of uploads (not feasible), or IP analysis (as IPs are often dynamic and change).

In December 2010, in response to the congressional international anti-piracy caucus' press release and the German court ruling, RapidShare enlisted the services of Dutko Worldwide to lobby its interests in the United States Congress.

In March 2012 the Hamburg higher regional court upheld three earlier decisions that the file hoster could be held liable for publication of copyright protected material by third parties.

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