The highest court in Germany has clarified that domain name registrars should only be held liable for pirate sites if all other options fail. The order is part of a drawn-out battle between Universal Music and domain registrar Key-Systems. Universal Music now has to show that taking direct legal action against the defunct torrent site H33t.com or its hosting company was futile.
In 2013, H33T.com, one of the Internet’s most-visited torrent sites at the time, disappeared from the web.
The downtime was initially shrouded in mystery but it later became clear that the site was at the center of a copyright infringement action.
‘Blurred Lines’ Takedown
In order to stop the distribution of a copy of Robin Thicke’s album Blurred Lines, Universal Music had obtained an injunction against Key-Systems, a German-based registrar where the H33t.com domain name was registered.
Key-Systems wasn’t happy with the ruling and the precedent it set but had no other option than to comply. However, the company did appeal the verdict and seven years later both sides are still fighting in court.
In 2018 the domain registrar suffered another setback. On appeal, the Higher Regional Court of Saarbrücken ruled the injunction was proper and that even a single link can require the company to take down a domain. Unsatisfied with this decision, Key-System went to Germany’s highest court whose verdict was just made public.
Domain Registrar Only Liable as Last Resort
The order of the Federal Court of Justice can be seen as a victory for the registrar. While the court stressed that domain registrars can be held secondarily liable for pirate sites, this should only be used as a last resort.
“Unlike the hosting provider who may save infringing data, the registrar only ensures the connection of an internet domain,” the court writes, stressing that domain registrars are neutral service providers.
The court further noted that the rights of Universal Music should be carefully weighed against those of the domain registrar. Generally speaking, registrars have no obligation to monitor or police the activities of their customers.
“When weighing up the fundamental rights involved, there is a risk that this results in a disproportionate burden on the registrar,” the court writes, adding that registrar liability “is the last resort if copyright protection cannot be effectively ensured in any other way.”
In addition, the rights of the public at large shouldn’t be ignored either. This means that overblocking should be prevented and copyright holders must show that a website is predominantly offering illegal content.
“Contrary to the opinion of the court of appeal, the fact that internet users are affected by the fundamental right to freedom of information cannot be ignored,” the court notes. This means that one pirated link is not sufficient to take an entire site offline.
Domain Registrar Isn’t Liable Yet
Universal Music already made it clear during the appeal that H33T.com was largely offering copyright-infringing material. However, the music company did not show that it tried to go after the operator or its hosting provider directly.
Without proof that Universal has taken legal action against the operator or the hosting company, Key-Systems can’t be held liable. The Federal Court of Justice, therefore, decided to refer the matter back to the lower court to properly review this angle.
This is positive news for the domain registrar, for now, but the legal battle will continue. The Federal Court of Justice also left the door open for a further review at the European Court of Justice, should that be needed.
Many thanks to TorrentFreak for the breaking news.