Illegal downloads of songs cause billions of dollars of loss every year, depriving the music industry of revenue that it must pay songwriters, artists and talent scouts. With a November 26 2015 decision the Supreme Court has opened the door to allowing internet service providers (ISPs) to block copyright-infringing sites.

German music rights society GEMA asked Deutsche Telekom, Germany's largest telecoms company, to block the website '3dl.am' because it offered access to copyright-protected music. However, the website was hosted in Armenia. In a separate case, the music companies urged O2 Deutschland to block access to 'goldesel.to', part of the eDonkey network and a peer-to-peer file-sharing network for music.

The Supreme Court ruled that ultimately ISPs can be required to block websites offering illegal music downloads, but only if the copyright holders can prove that they first made reasonable attempts to defeat such piracy by other means. The Supreme Court dismissed the cases (I ZR 3/14 und I ZR 174/14) brought by GEMA against Deutsche Telekom and by music companies Universal Music, Sony and Warner Music Group against O2 Deutschland. Although, in principle, ISPs could be held responsible for blocking music illegally available on the Internet, even if the content remained available elsewhere, the court found that the plaintiffs did not undertake sufficient efforts to prevent or impede the copyright violations in the first place.

In its ruling the Supreme Court stated that:

"The company that offers Internet access will only be held responsible for blocking the site when the copyright holder has first made reasonable efforts to take action against those who have themselves infringed their rights, like the website operators, or those who have enabled the infringement, like the Web hosting providers."

Lessons

In principle, ISPs have a responsibility to block illegal content at a rights holder's request. However, this responsibility should be looked at only as ultima ratio – ISPs can be held responsible only where a failure of legal protection is feared. Consequently, although the decision appears to pave the way for ISPs to block websites offering illegal copyrighted music works, it also sets a rather high bar for rights holders to investigate the locations of primary infringers. For example, this may include hiring a detective agency or involving state investigation authorities. Hence, in practice, it remains to be seen whether this decision will provide the desired help for rights holders in Germany.

In any event, the German courts can expect to receive an increased number of requests to block illegal download websites in the near future. While 3dl.am is no longer online, other high-profile pirate sites including The Pirate Bay and KickassTorrents may be GEMA's next targets.

EU perspective

This may not be the last (legal) word for Deutsche Telekom and other ISPs in Germany, since the European Court of Justice (ECJ) is to rule on this issue following a referral from the highest court in the Netherlands. The question submitted to the ECJ referred to injunctions that required Dutch ISPs to block The Pirate Bay and whether such blocking would violate the ISPs' rights under EU law. Specifically, it asked the ECJ to rule on "whether The Pirate Bay's actions infringe European copyright laws and to what extent a court can order ISPs to block subscribers access to illegal websites". The ECJ ruling is expected to be handed down during 2016 or the first half of 2017, and will set an interesting legal precedent in the European Union.

Rainer K Kuhnen

This article first appeared in IAM. For further information please visit www.iam-media.com.