EMI loses German ISP blocking case

October 2011

Record labels, internet

Following on from a fairly unsuccessful attempt to block digital cloud locker service MP3Tunes in the USA, EMI has now failed to force a German ISP to block access to file-sharing service eDonkey. The court in Cologne ruled that the net firm HanseNet was not liable for the actions of its customers in accessing Russian illegal file swapping services.

In the UK in 2011 the Motion Picture Association was more successful, with the High Court granting an injunction ordering BT to block access to Newzbin2, an online community that provides links to manifold unlicensed content, and which relocated its base to Sweden after losing an earlier infringement lawsuit.  In the L’Oreal v Ebay case (2011) the European Court of Justice, looking primarily at trade mark issues, decided that a service provider such as eBay could be liable for users infringements under national law, unless it can rely on an exemption from liability provided by Directive 2000/31 on electronic commerce. The ECJ explained that such an exemption would be subject to the following conditions being met: (i) the operator does not play an active role, i.e., it does not know or control the data provided by its customers; (ii) a diligent economic operator would not have realised that the online offers for sale were unlawful; and (iii) the operator must not have failed to act promptly to remove offers of counterfeiting goods from its website or to disable access to such offers.

In Germany, EMI pursued Hansenet for contributory infringement, arguing that if HanseNet failed to block access to a site it knew was enabling a customer to infringe copyright, then it too should be liable for the infringement. But the net firm argued that was not the case, because under European Law it could not be held liable for the actions of its customers. It also added that web-blocking was pointless because such blocks could be easily circumvented by file-sharers. The German judge concurred with HanseNet, adding that for the ISP to interfere with a customer’s browsing would actually infringe German communication law. According to TorrentFreak, he also said he was convinced by HanseNet’s arguments that web-blocking was ineffective and therefore “useless”.

In Australia the case to determine the liability of ISP iiNet for its customer’s actions has been sent to the High Court for a second appeal. In 2008 iiNet was sued by AFACT, the organisation representing film companies in Australia, for infringement of copyright in the studios’ films . A key argument was that the ISP was liable for its users’ infringements as it was aware of what was going on (having received notifications about such infringement from rights holders) and did not act to curb such activity so had  ‘authorised‘ the infringements. However, the Federal Court decided in iiNet’s favour, ruling that iiNet had not authorised the infringements. AFACT then appealed to the Full Federal Court and while the appeal was dismissed, it was a mixed victory for iiNet as the Court did not preclude holding an ISP liable for authorsiation under different circumstances.

In an interesting development in the EMI v MP3Tunes case in the USA, where the operators of digital ‘cloud lockers’ were held to be protected by safe harbor provisions,, EMI has filed new papers asking the court to reconsider its ruling regards any links to unlicensed tracks that were released before 1972. This is because federal copyright law cannot overrule state copyright rules for content published before 1972. Universal Music is using the same legal anomaly in its lawsuit against sharing-and-streaming service Grooveshark, which also claims it is protected by the DMCA safe harbour clauses. It will be interesting to see how the courts react to this re MP3tunes.com. It might be interesting of the court decided that safe harbour principles did not apply to pre-1972 content.


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