
German Court Says Domain Registrars Are Responsible for Content on a Website - JungleNavigator
http://www.thedomains.com/2014/02/07/german-court-says-registrars-are-responsible-for-content-on-a-website/
======
bowlofpetunias
Ridiculously misleading headline.

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.

~~~
AnthonyMouse
> There's nothing wrong with that in principle

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.

~~~
RogerL
No, you've shut down that one domain, not made it impossible for them to own
legal domain names, or otherwise be on the internet. Not that I agree with the
law, but you seem to be rather overstating the repercussions.

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.

~~~
AnthonyMouse
> No, you've shut down that one domain, not made it impossible for them to own
> legal domain names, or otherwise be on the internet.

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?

~~~
forthiscomment
That's not what the law says though. It only says that if I'm renting to you
and I find out that you're cooking meth I should evict you; not that I should
refuse to rent to you because I heard you've cooked meth. I'm responsible for
meth being cooked on property I own, whether it's me cooking or not. In the
same way, if I find out you're doing something illegal (file sharing for
example), I should stop you.

~~~
AnthonyMouse
> It only says that if I'm renting to you and I find out that you're cooking
> meth I should evict you; not that I should refuse to rent to you because I
> heard you've cooked meth.

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.

------
lucb1e
Yeah and Mercedes is responsible for my speeding ticket. They purposefully
make their cars able to exceed the speed limit of 50km/h inside cities.

~~~
SixSigma
I have always wondered why one is able to sell a car that can go over 100mph
when the maximum speed allowed on the roads in my country is 70mph and being
caught going 100mph will land you in jail.

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...](http://www.waterstones.com/waterstonesweb/products/richard+miller/squed/4929163/)

~~~
icebraining
I don't know about your country, but in some countries there are private race
tracks where you can speed legally for a few thousand bucks.

~~~
DennisP
And in Germany you can drive as fast as you want on the Autobahn.

------
PythonicAlpha
As other people here addressed correctly: That ruling is not final.

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.

~~~
pi-err
Judges (continental Europe) apply the law. It's a different tradition than
common law. They do interpret it though it leads you so far.

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.

~~~
PythonicAlpha
It is right, that in continental Europe, there is less freedom to judges
interpreting the law. In theory they are bound to the law and have no own
judging freedom as in the US.

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.

------
oneeyedpigeon
Thank god there's no other way to address a server on the Internet, and that
this measure will once and for all stop all copyright infringements, whilst
being utterly implementable and policable.

~~~
thisiswrong
And thank the lord that governments like those of the UK don't already send
out unlawful extrajudicial domain termination requests to registrars. Thank
god systems like NameCoin and P2P distributed websites are not being developed
as we speak by internet visionaries.

~~~
hoggle
I'm also thankful for non existing information on non existing technologies:

[https://en.wikipedia.org/wiki/Namecoin#Uses](https://en.wikipedia.org/wiki/Namecoin#Uses)

[https://github.com/FellowTraveler/Open-Transactions-
old/wiki...](https://github.com/FellowTraveler/Open-Transactions-old/wiki/OT-
Replaces-DNS)

------
Snoddas
Original article is much more informative.
[http://www.pcadvisor.co.uk/news/tech-
industry/3501030/german...](http://www.pcadvisor.co.uk/news/tech-
industry/3501030/german-court-finds-domain-registrar-liable-for-torrent-sites-
copyright-infringement/)

~~~
qwerta
And totally different from the post here.

> 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.

------
th0br0
This ruling is not final yet, and Key-Systems is likely to go into revision.
(see [1], German)

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...](http://www.golem.de/news/landgericht-saarbruecken-domain-registrar-
haftet-fuer-bittorrent-tracker-h33t-com-1402-104441.html)

------
enscr
That's like saying the president is responsible for all crimes in the country.

------
us0r
People like to complain about laws/regulation/tax/etc. in the US but it is on
an entirely different level in the EU.

~~~
halfdan
It is also important to note that in difference to the US court rulings cannot
be used as reference for future cases in Germany.

~~~
us0r
No way? I thought the supreme court was like ..... supreme?

~~~
pjump
Courts within Civil Law systems are there just to interpret and enforce the
law, not to create it. What individual courts decide is not binding on anyone
but the involved parties.

~~~
mariuolo
Even if not binding they are important references.

------
pbhjpbhj
> _A domain name registrar can be held liable for the copyright infringements
> of a website it registered if it is obvious the domain is used for
> infringements and the registrar does nothing to prevent it, the Regional
> Court of Saarbrücken in Germany has ruled._ //

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.

------
Oculus
This isn't the first time the German government is doing something like this.
Previously, they've established laws that dictate the way in which buttons
must be presented on ecommerce websites[1].

1:
[http://www.youtube.com/watch?v=mxBaDs0sGPw&t=38m18s](http://www.youtube.com/watch?v=mxBaDs0sGPw&t=38m18s)
\- Shopify CEO discussing international expansion.

~~~
gurkendoktor
Except this time it wasn't the German government but a single (local) judge -
whereas the "Buttongesetz" was indeed promoted by the federal minister of
justice, who was trying to address end-user complaints.

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.

------
CalRobert
Interestingly, this sort of request isn't limited to registrars. I did a bit
of work with a registry for some new gTLD's (not a program I support; my
former employer became involved in the business) and they had already planned
for dealing with takedowns of domains at the registry (not registrar) level.

------
mariuolo
A most dangerous precedent.

It would be nice if common norms in this regard were codified EU-wide.

------
ESBoston
I don't see how this enforcement would be practical.

