Atari vs. RapidShare: Higher Regional Court of Düsseldorf decides

Several German websites report (here, here, here) that Swiss file- and share-hosting service RapidShare has been victiorious in a copyright infringement lawsuit brought by video game maker Atari before the Higher Regional Court of Düsseldorf concerning illegal copies of the game "Alone in the Dark" which had been shared on RapidShare's site. Case reference: OLG Düsseldorf, I-20 U 59/10 of 21 December 2010). The appeal decision comes after the Regional Court of Düsseldorf had recently decided in Atari's favour. On appeal, the Higher Regional Court of Düsseldorf has now overturned this decision holding in RapidShare's favour.

What had happened? The claimant in the proceedings, Atari, had taken objection to the distribution of the game via the RapidShare site, and argued that the hosting service had a legal responsibility to block downloads. Ataria had, inter alia, demanded that the RapidShare had a duty to automatically retrieve, filter and delete all files which included certain keywords. RapidShare responded by, inter alia, arguing that this would be taking its duties too far and could lead to a deletion of perfectly legal files which just happened to include the respective keywords.

The Higher Regional court appears to have been swayed by RapidShare's arguments. While the court agreed that there was copyright infringement under Article 97 German Copyright Act, it nonetheless found that a giving RapidShare a duty to filter the content under "disturbance liability" principles ("Störerhaftung") would be “arbitrary” since a keyword was not compelling evidence that a file included infringing material. The court apparently also found that a manual check of potentially infringing files was too work intensive to be feasible.

The court allowed a further appeal since the question as to what duties a file sharing service had to fulfil in order not to be caught by "disturbance liability" had yet to be decided by the Bundesgerichtshof.

Helpfully, openjur.de has published the court's decision here. The decision certainly warrants some closer scrutiny and it will be interesting to see whether this matter will make its way to the Bundesgerichtshof.

Merpel wonders whether other Higher Regional Courts, such as the OLG Hamburg, may have decided this case differently but has, shall we say, an inkling that the Bundesgerichtshof would uphold the Higher Regional Court's decision if Atari decided to file a further appeal.