German court finds domain registrar liable for torrent site's copyright infringement

If left unchallenged this ruling will endanger the entire business model of registering domain names, the registrar said

By Loek Essers

February 07, 2014, 8:18 AM — A domain name registrar can be held liable for the copyright infringements of a website it registered if it is obvious the domain is used for infringements and the registrar does nothing to prevent it, the Regional Court of Saarbrücken in Germany has ruled.

The court ruled in a case between Universal Music and Key-Systems, the German registrar of the domain name for h33t.com, a torrent tracker site.

Universal had wanted to prevent unauthorized distribution of Robin Thicke's album Blurred Lines, said Volker Greimann, Key-Systems' general counsel, in an email.

While Key-Systems argued that it was not responsible for the copyright infringement, the court ruled that the registrar had a duty to investigate after notification of infringing activity and had to take corrective action in case of obvious violations, Greimann said.

"The courts' definition of what is obviously violating is however extremely broad and the duty to act is expanded to deactivation of the entire domain even if only one file or link is infringing," he said.

"If left unchallenged, this decision would constitute an undue expansion of the legal obligations of each registrar based in Germany, endangering the entire business model of registering domain names or performing DNS addressing for third parties," he said, adding that Key-Systems is currently reviewing the decision and considering its options for an appeal.

Universal demanded that Key-Systems end the infringements by deactivating the domain, and asked it to sign a contract agreeing not to let the infringement happen again in the future, Universal's lawyer Mirko Brüß wrote in a blog post on Wednesday. He also published the verdict, dated Jan. 15.

When Key-Systems refused to heed Universal's demands, the music company sued the registrar.

During the lawsuit, Key-Systems argued that it was only providing a technical service, much as does DENIC, the central registry for all domains under the .de top level domain.

The Federal Court of Justice in Karlsruhe had already ruled that DENIC is generally not liable for rights violations, the verdict showed. DENIC could only be liable if the infringement is obvious and readily identifiable, even after it was notified that rights violations were taking place on a specific domain, the Federal Court of Justice ruled.

However, the Regional Court of Saarbrücken found that the rights violations of h33t.com were obvious and easy to identify, said Brüß. Since the album was still shared through h33t after several requests sent to the website's operator by Key-Systems to stop the infringing activity, the registrar had to act to stop the infringement, the court found.

If someone notifies the registrar of a clear violation of the law, it must examine the specific allegation immediately and close the domain if necessary, the court ruled.

If Key-Systems ignores this ruling it faces a maximum fine of €250,000 (US$339,000).