In a landmark case, a court in Germany has decided that under German copyright law, web hosts can be held liable for copyright infringements committed by the websites they host.
Liability for copyright infringements
Web hosting services have until now enjoyed a privileged position. They host websites on their servers and are generally under no obligation to check the content of those websites for copyright infringements and other infringements of third party rights.
However, the Higher Regional Court of Hamburg has now taken the view that if web hosts have knowledge of legal infringements, they can be held liable (13.05.2013, Az. 5 W 41/13).
In this case, the web hosting service had been repeatedly informed about copyright-protected audio files on one of the websites it hosted. The files were uploaded by a third party who did not possess a licence in accordance with § 19a of the German Copyright Act. In such circumstances, liability as a perpetrator falls squarely on the third party.
However, for financial reasons, copyright holders prefer to pursue web host providers, as it is more likely they will have the funds to pay compensation.
To pursue such as route the courts must be willing to hold the web host strictly liable for the copyright infringements (the so-called Störerhaftung).
In the current case, the judges went one step further: they held that through repeatedly refusing to delete the offending content from its services, the web hosting service aided and abetted the commission of the offence.
Under § 27(2) of the German Criminal Code (Strafgesetzbuch, StGB), the starting point for calculating the punishment for aiding and abetting is assessed in accordance with the punishment for committing the crime and is then often reduced accordingly.
The finding in this case is in no way absurd. In providing the service to host the website and having obtained knowledge of copyright infringements, the web host contributed in a large part to the commission of the offence.
This case differs from those where copyright-protected content is deleted and then reappears elsewhere. In these classic cases, web hosts can be held strictly liable for the copyright infringements. Here no crime is committed and no compensation is payable. However, the recipient of warning letters in such cases often have to pay the other side’s legal fees.