Music industry takes on operators of eDonkey servers

On Friday the German music industry celebrated a partial victory in its fight against the illegal distribution of music on the Internet. A temporary injunction issued by the District Court (LG) in Hamburg and served to the operator of an eDonkey server had “ordered the said operator to take his computer off-line for as long as the range of music files offered for download via the server contains illegal files,” the German Chapter of the International Federation of the Phonographic Industry (IFPI) declared (File Number 308 O 273/07). The way of describing the case chosen by the Chapter is a highly abridged version of events, however. As a matter of fact, in the case dealt with by the court in Hamburg, the operator was only prohibited from distributing the songs contained on one album of one band.

According to the IFPI the district courts in Frankfurt-on-the-Main and Dusseldorf have issued similar orders to operators of servers. “We shall in future take legal action against any operator of a P2P network server who makes tracks available illegally,” Peter Zombik, the Director of the German Chapter of the IFPI, said on Friday. It was “sad to see the inherently beneficial P2P network technology still being used to violate copyright on a massive scale — the availability of appropriate filtering technology notwithstanding,” he added.

Because the eDonkey servers do not themselves offer the files that are being shared the plaintiffs in their complaints against the operators have to rely on the legal notion of disturber liability. Thus according to the opinion of the court the operator of the server had “willingly and in a causal fashion assisted in the illegal disturbance,” without himself having been perpetrator or participant. At the very latest after the receipt of a warning letter from the copyright holders the operator must have been aware that copyright violations were being committed and should have “taken effective measures” to prevent any such violations from occurring in future, the court declared.

While talking to heise online the IFPI spokesman Stefan Michalk said that the Federation believed that it was now up to the Internet Access Providers to do their part. This was “the direction” future legal steps would be moving in, he remarked. The music industry could wield the notion of disturber liability to force providers to implement technical measures for blocking access to illegal tracks in P2P networks, he observed. The similar efforts of Belgian copyright holders have of late been crowned with a first legal victory. (Robert W. Smith) / (jk/c’t)

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