Last Friday, (October 9, 2020), Germany’s Higher Regional Court of Cologne ordered US-based “web performance and security company” Cloudflare to block access to content offered by one of its clients’ websites.
The legal proceedings were initiated by a member company of German Federal Music Industry Association, the Bundesverband Musikindustrie (BVMI), because access to infringing site, ddl-music.to, had not been blocked in spite of copyright infringement having been flagged previously.
Cloudflare, which turned over more than $280 million last year, offers anonymization via a Content Delivery Network (CDN), which BVMI states is “misused by copyright infringing websites to evade prosecution by making them anonymous”.
The Higher Regional Court of Cologne has now forced Cloudflare to block content which has been reported to it by rightsholders or to block its customer’s entire websites.
BVMI says that this decision is particularly noteworthy as it marks the first time that a German Higher Regional Court has issued a preliminary injunction against an anonymization service.
The organizaton adds that this decision will make such evasion measures more difficult in the future.
“The decision of the Cologne Higher Regional Court strengthens the position of right holders in an important field and is a clear signal: a service which helps others to evade prosecution by making them anonymous is illegal as well.”
Dr. Florian Drücke, BVMI
Dr. Florian Drücke, Chairman of BVMI, said: “The decision of the Cologne Higher Regional Court strengthens the position of right holders in an important field and is a clear signal: a service which helps others to evade prosecution by making them anonymous is illegal as well.
“The decision is a further success for our industry in the face of offers on the net which cause considerable damage to creatives and their partners and whose business model is based on generating sometimes substantial revenues with third-party content without acquiring licenses for the use.
Added Drücke: “The licensing business as the lifeline of the music industry is shifting more and more to the net, as is the use of music. In mid-2020, three-quarters of the industry’s turnover was generated online, and the trend is rising.
“So if the legal dos and don’ts in the digital licensing business are not clearly defined, the future of the industry is at stake. Therefore, the correct implementation of the Copyright Directive is absolutely necessary.
“Here, we depend on political support in the interest of the market participants, because German solo efforts, as currently planned by the German Ministry of Justice, would damage the digital licensing business, counteract the European compromise and thus ultimately fragment the digital internal market instead of harmonising it.”
“An anonymisation service must not allow third parties to disseminate illegal offers while concealing the identity of the servers of structurally infringing websites.”
René Houareau, BVMI
René Houareau, Managing Director, Legal & Political Affairs at BVMI, said: “A decision whose importance should not be underestimated.
“Step by step we are getting closer to the modern understanding of the responsibility of all players on the Internet – especially through ambitious court decisions like the one at hand.
“An anonymisation service must not allow third parties to disseminate illegal offers while concealing the identity of the servers of structurally infringing websites.
“In other words: excuses no longer apply in such cases either. The services must increasingly recognise that some smoke candles no longer work.
“The liability privilege on the basis of § 8 TMG could not be effective here, if only because there was a contractual relationship between the service and the content provider and the latter had intervened in many ways in the data transfer between users and website operators”.Music Business Worldwide