Elements of the blogosphere aligned with content ownership have stated a belief that this new ruling is likely to destroy RapidShare.com and have a wide-ranged chilling effect on file sharing more generally. Conversely, free culture advocates point out the fact that the German legal system is far less reliant on precedent than the American or English system of jurisprudence, and suggest that the real reach of this decision may not extend anywhere beyond this one particular file host. In fact, some argue that the decision won't even be affirmed on appeal and many suggest there is no practical method of enforcement capable of impacting the transfer of files from one user to another anyway.
RapidShare is a page rank 6, Alexa rank 17 website, known for allowing users to upload or download content of all kinds. The lawsuit against RapidShare was filed by GEMA (www.gema.de/en/), a well-known German trade organization that is essentially the German counterpart of copyright organizations like the RIAA in the U.S. Perhaps the most significant part of the entire confrontation is that it represents a continuing trend toward E.U. dominance in regulatory regards. With seismic shifts in the global economy and the international nature of the Internet, we may be seeing the rise of European power in an administrative role.
In April a Swedish court sentenced the owners of The Pirate Bay to a one-year jail term and ordered payment of millions of dollars in fines to content producers. In May E.U. Information Society Commissioner Viviane Reding called for the U.S. to lighten its grip on ICANN and allow greater international influence on the way domain name ownership is administrated. In June, a German court issued a ruling that at the very least is "not good" for file sharing interests and potentially can be devastating if it is backed by other similar rulings in the months or years ahead.
Whereas American "safe harbor" legislation allows companies like YouTube to deny knowledge of copyrighted material and to facilitate the transfer of all data with little regard to the legality of each user or transmission, this new German ruling holds file-sharing entities to a much higher standard.
Germany's Hamburg district court ruled that RapidShare uses insufficient measures to protect against piracy. Holding that removal of material for which RapidShare receives copyright complaints is not enough and that RapidShare must proactively check content before it is made available online in the case of users who have committed previous infringements. In essence the ruling requires the host to log IP addresses of all users, find potential infringers, and prevent them from using the service to share protected content.
RapidShare did attempt to argue that they have some safeguards in place already, including an MD5 Hash filter designed to prevent sharing of exact copies of protected content and a staff of six people working full time to remove infringing materials. However, the court rejected those arguments in part because Hash filters can be circumvented by simply changing a few bytes of a file and decided instead that the burden of copy protection rests with the host.
In a bold statement the court noted, "A business model that doesn't use common methods of prevention cannot claim the protection of the law," thereby ruling that just because proactively preventing dissemination of protected content may be very expensive, or difficult, or destructive to a business model like the one being used by RapidShare, that was not a reason in and of itself to modify the requirements placed on hosts to essentially police their users.
While there are a number of significant companies producing quality adult content in Germany presently, the topic is so hot within German borders right now that when each was contacted, they refused to comment about the case, about RapidShare or about GEMA in any way on the record. The possibility of alienating consumers, agitating RapidShare supporters or saying something discordant with GEMA all pose too great a risk for companies more interested in making a profit than making a statement.
Free Culture advocates and ardent file sharing technology supporters have been very vocal about their disapproval of the latest ruling in Germany.
"The whole question of file sharing and copyright enforcement has come to the point where it's generating its own weather system," said D. Spink, chief technology officer of Baneki Privacy Computing. "Historical reality is that copyright is a relatively new, relatively constrained, quite limited exception to the longstanding acceptance that human culture is not owned by anyone. These new ideas of [limited-term, limited-scope] protections of intellectual property are also implemented rather differently in different countries — who themselves have their own legal systems, foundations of common law precedents, and procedural standards in the legal process. Additionally, we all know that statutory treatment of copyright, in all jurisdictions, wasn't structured to deal with the current state of inter-networked, friction-free distribution of ideas and content."
While D. Spink did acknowledge, "There is no doubt that there are egregious examples of misappropriation of artistic content for commercial benefit — and I would personally agree that RapidShare is rather near that boundary, if not fully over it," he was also quick to point out that, "the content oligopolies pursuing these cases have utterly lost sight of the forest in efforts to punish individual trees — because they have spread such a broad and patently unjust net in chasing around noncommercial file-sharing activity, they find far less support in those rare cases when a legitimate issue rises to the surface. Perhaps a better metaphor is the boy who cries wolf over and over — after a while, even the appearance of a real instance of Canis lupus isn't enough to get others to come to his aid."
Governments historically have allowed the free market to self-regulate these kinds of disputes in the hope that consumers and business interests might establish workable frameworks for fair use. However, the growing trend in Europe is one tilting toward greater regulation and enforcement, which is almost always bad for both the consumer and commercial interests in the long run. Will free culture advocates remain so intent on complete openness while feigning ignorance to the obvious harm being done to commercial interests by it? Will businesses and trade groups continue to push for draconian regulations that retard technological advancements and thwart consumer conveniences possible today that did not exist a decade ago?
As people begin to become increasingly entrenched on both "sides" of these issues and battle lines are drawn or redrawn, the possibility of some kind of mutual understanding approaches a point of singularity. There seems to be a very strong argument that unless both sides move toward the middle, the black hole of government intervention is beginning to form with potentially catastrophic results for everyone online.