The Rapidshare II decision of OLG Hamburg

LG Hamburg, Urteil v. 14.03.2012, Az. 5 U 87/09, Link: http://tlmd.in/u/1356

The Hamburger Court of Appeal issued on 14.3.2012 its decision in the case of liability of Rapidshare for the illegal distribution of copyrighted material from its users. The decision has been hailed for its pioneer role (See, e.g., Adrian Schneider, OLG Hamburg: Die Rapidshare-Entscheidung, ein Meilenstein?)

The main conclusions are the following:

1. The business model of RapidShare includes not only the spread of illegal content. In principle, the business model is therefore worthy of protection (otherwise than OLG Hamburg, MMR 2008, 823 - Rapidshare I).

2. The uploading of illegal content on Rapidshare is not making it available to the public, since only publication of links to such content is making online available illegal content(otherwise than OLG Hamburg, MMR 2008, 823 - Rapidshare I).

3. Rapidshare is not a "neutral intermediary", since Rapidshare allows anonymous use of its service, it takes an "active role" because copyright infringement does take place, from which the company benefits indirectly.

4. The provision of § 13 para 6 TMG does not impose mandatory anonymous usability of Telemedia services. The provision is rather under a reservation of reasonableness. An anonymous use is not reasonable, if a service has a special risk propensity.

5. It is unreasonable to impose a duty to RapidShare to monitor relevant lists of links on the distribution of links to copyrighted works. Rapidshare must remove not only links that have been recognized as illegal, but also try to identify similar links.

6. In addition to monitoring of link lists Rapidshare has a "general market surveillance duty."

See the full text (in German)