Chicago (IL) – RapidShare is battling accusations that it is not doing enough to prevent music piracy on its servers. The company claims that it can’t be held responsible for piracy and that there is no filter technology that can identify music files anyway. German representatives of copyright holders, want RapidShare to prevent the publication of music files and, if necessary, shut down the service.

Some may never have heard of RapidShare, but the company is surely one of those Internet success stories that come along once in a while. According to Alexa, the Switzerland-based company operates the 12th largest website on the Internet overall, providing users with an opportunity to store and quickly distribute files. RapidShare claims that it currently provides about 4.5 PB of data storage capacity and a bandwidth of 210 Gb/s.  

For about one year, RapidShare has been in court with Germany’s GEMA, an authority that represents about 60,000 copyright holders in Germany and about one million worldwide. GEMA, which estimated that RapidShare hosts more than 15 million files on its servers, successfully placed an injunction against RapidShare in early 2007 to prevent access to GEMA-protected music titles. RapidShare then won an appeal and convinced the court that it is unreasonable to force RapidShare to generally prevent the storage of music files on its servers.   

In the most recent proceedings, RapidShare has lost a "negative appeal" against GEMA, which the company hoped would provide legal guidelines of filtering guidelines. Had RapidShare been successful, GEMA would have been prevented from launching further lawsuits with the goal to increase the severity of RapidShare's legal obligations. However, the court made a 180-degree turn from the previous decision and ruled that RapidShare has "comprehensive obligations" to prevent music piracy on its servers. The court further said, that this even includes actions that may make RapidShare’s business model "less attractive" or may "result" in a shutdown of the company.  

Thanks to the nature of the negative appeal, this ruling has no impact on RapidShare’s operations at this time. But GEMA has received new support for its case and there’s no question that the next suit is just a matter of time.

TG Daily had a chance to chat with RapidShare chief operating officer Bobby Chang via email to find out the details of his view on the argument, data piracy and the role of the Internet in file distribution.

TG Daily: Obviously, music piracy is a fact on the Internet and there is very little doubt that it is happening through RapidShare as well. What measures do you have in place to prevent piracy?

Chang: RapidShare deletes those files which we know include copyrighted material and are made publicly available. We also check whether link resources make copyrighted materials available and delete respective files. Additionally, we use filters.
   

TG Daily: What would you say is your legal responsibility to protect copyright holders? Where would you draw the line between legal obligations that make sense and those that are out of line?

Chang: If we talk about the sense and nonsense of legal obligations we will have to define the goals first. Should we provide a 100% guarantee that copyrighted material will not be distributed? Everyone knows that this is difficult to achieve, since the majority of the material itself is not - or at least is not sufficiently - protected to prevent illegal distribution. In that sense, an infrastructure provide [like RapidShare] has to fix that problem afterwards - and find a copy-protection solution that actually has not been invented yet. This is why we filed the negative appeal. We wanted to answer the questions what may make sense and what is possible. And what exactly are the obligations of the hoster?  

TG Daily: So you believe that you cannot prevent piracy?

Chang: At this time, we are asked to do something that is not possible. One aspect of the proceeding is the difference between files and music material. We delete files if we are made aware that they include copyrighted material and that they have been made available to the public. We also check link resources. But GEMA asks us to prevent music material from being made publicly available. And that is not possible. Here’s why: Music can be saved under any name and under different names. Plus, there are different formats, split files, etc. Today there is no technology that would allow us to identify copyrighted music.

Also, criminal law does not give us permission to search through files. According to German law, a buyer also has the right own one private copy. Many of our users use as Premium account for data backup, to store data in physically separated professional data center.

Read on the next page: "It isn’t against the law to store music on RapidShare servers."

 
TG Daily: But that is not really an excuse for the piracy some RapidShare are engaging in, right? Looks like GEMA does have a reason to complain. The question however may be whether you really can be held responsible for actions of your users.

Chang: It isn’t against the law to store music on RapidShare servers. It is also permitted to provide access to music to close relatives and good friends. But you are breaking the law if you grant public access, which means you are mass-distributing files. As a result, the hoster can become active when public access to copyrighted data has been provided. But it is impossible to protect files proactively, since the purpose of such a file is unknown beforehand.

It is important to note that RapidShare is a hoster and therefore an infrastructure provider. According to the Telemedien Gesetz (the applying German media law, -ed), there are limited legal obligations for infrastructure provider to protect content. The liability is limited in order to enable companies to provide infrastructure. The obligations of content providers reach further. But RapidShare is an infrastructure provider, not a content provider.  

TG Daily: Is GEMA the only one who is complaining about piracy or are there artists as well?

Chang: So far we haven’t heard from anyone. We believe that the reason is that other organizations are happy with the way how we and our abuse department work. For example, the GVU (a German association that promotes the prosecution of copyright violations –ed) recently investigated the reactions of hosters when they are asked to delete a copyrighted file. RapidShare was the quickest to react.  

TG Daily: We all know what happened with Napster back in the early 2000s. Organizations such as the RIAA, or in this case the German GEMA, rarely agree to a compromise and are relentless in pursuing their goals for whatever reasons. There is the chance that the pressure on sites like RapidShare will grow quickly, once you have become a target. In that view, do you think platforms such as RapidShare can survive? Do such platforms have to adapt to what copyright holders want? Or do copyright holders have to accept the way services such as RapidShare work?

Chang: We believe that the current discussion is not constructive. The Internet is a global data communications infrastructure. Technology and privacy limit any request for total control. We have to discuss this topic on a social level to be able to find a balance between the needs of everyone involved. The goal cannot be to get rid of the infrastructure, simply because there is abuse. It is about to find reasonable solutions that make sense. You can’t turn back time.      

TG Daily: Do you expect similar lawsuits in other countries as well?

Chang: No. The law appears to be a unique for Germany.

 
TG Daily: Thank you for the interview.