Slashdot Mirror
AOL Liable For User Content In Germany?
Sjsop writes, "CANOE reports that a German state court has ruled that America Online (AOL Germany, at any rate) is liable for the content of its servers, even where it has no control over that content. (The story is here.) Hit Box Software sued because AOL-G users were trading some of its copyrighted music files and won the case, even though AOL shut down the forums where the trading occurred as soon as they found out about it. This sounds like Bad News to me, especially if (as is likely to happen) it's applied to smaller ISP as well as AOL." I read a great comment the other day: What next, suing Home Depot for selling the lead pipe that killed Professor Plumb?
I think the obvious implication of this type of decision is to discourage ISPs, through threat of liability under copyright (in this case) or libel (think Demon), from allowing individual users to post their own content online. Who stands to benefit from an internet with higher barriers to entry for producing content? Existing media companies (who don't want the competition) and governments (who are already cozy with these established players).
I fully expect to see more of these cases arise, all over the world; this is the future of the mainstream internet.
Waxing cynical,
-Isaac
I am not a lawyer, and this is not legal advice. For Entertainment Purposes Only.
Without your free speech rights, your property rights are up for grabs and there's nothing you can say about it. There's a solid reason why the First Amendment is the FIRST amendment.
-Isaac
I am not a lawyer, and this is not legal advice. For Entertainment Purposes Only.
Ah yes, but here's the deal. Perhaps I misspoke above. What I meant was the First Amendment of the Constitution is meant to prevent religious persecution more than anything else. I know the Puritans were NOT behind it, but you can't tell me that Madison (the primary author of the Bill of Rights) wanted everyone to be forced into practicing the same, state-sanctioned religion. He wanted to avoid situations like the wars of religion in England and France. (NOTE: The previous two sentences are my interpretations of historical facts and are not to be taken as historical facts in themselves. This disclaimer appears for the intelligence-impaired.) Madison is quite a fascinating historical figure.
The Freedom of Assembly and of the Press are also tacked on because they are vaguely related. Madison also greatly opposed the Alien and Sedition acts under President Adams.
Don't talk to me about historical misinformation. What you learned in public school in the U.S. is all bullshit and lies anyway. If you want to learn anything, you have to read many different sources sift through the propaganda and figure it out for yourself. That is a task for which the current system of "miseducation" in the US does not prepare its students.
Just be sure to wear the gold uniform when you beam down -- you know what happens when you wear the red one.
Without your free speech rights, your property rights are up for grabs and there's nothing you can say about it. There's a solid reason why the First Amendment is the FIRST amendment.
Yeah, its because the Puritans and others who came to "The New World" to escape religious persecution felt it was extremely important to keep the government out of the religion business. They saw the trouble that comes from having the Church and State be one with the religious wars in France and England.
THAT is why the First Amendment is the First Amendment.
There's a reason for the Second Amendment being the Second Amendment: because force of arms is the only way to guarantee the rights granted under the First Amendment.
Jeez. I could go on like this all day....
Just be sure to wear the gold uniform when you beam down -- you know what happens when you wear the red one.
How right you are, Streetlawyer! When I saw what had been done to your previous post, it made me wish that I hadn't used all my moderator points yesterday.
The moderation system on Slashdot is often abused, in much the same way that a legal system was abused in the AOL Germany case at hand. Just because you say something that some Slashbot (I like that phrase) who happens to have moderator points disagrees with, you get moderated down. You are not moderated here for how well you frame your argument, nor for your persuasiveness, nor for any evidence that you might bring to support your argument. If you do not toe the party line, you are moderated down. This is, in fact, a form of censorship because many folks do not read Slashdot at a -1 threshold. So, beware and be warned, karma whore that you are, you will be moderated down for not speaking the gospel according to Slashdot. You will be censored. You will be silenced. It is a fact of posting on Slashdot.
Just be sure to wear the gold uniform when you beam down -- you know what happens when you wear the red one.
I will not write a long rant about clueless press copying each others (wrong) articles and repeating the music industrie's pointless propaganda and about slashdotter thinking they get the real facts of a jurisdiction out of 3 lines in an article.
Instead I will point out just three small factlets:
- The company sued because of three midi songs which were created by them and were downloadable in that forum.
- AOL didn't do anything although they knew of the problem
- AOL forum != internet.
Oh, and AOL isn't fighting for free speech here, they're fighting for low costs. It's the for same reason for which they give a f*ck about usenet spam and UCE complaints.
The viewpoint you are missing is called compensation.
More correctly, it's called the "deep pockets" legal theory: don't sue the guilty ones, sue those who can pay you.
I mean let's face it, they do deserve some compensation.
They do? Maybe, in the grand scheme of things. But why does the ISP have to pay it? Why not the phone company, or the CD players' manufacturers, or the local supermarket, or somebody else? There is this weird perception that I meet all the time: if something bad happens to you, you deserve compensation. I don't see why it is true, or even how it possibly can be true, but the good people persist: I spilled coffee on myself -- let's sue McDonalds!
If you are trying to argue there is some justice in this, you have not succeeded.
Kaa
Kaa
Kaa's Law: In any sufficiently large group of people most are idiots.
The difference is that AOLG is not directly involved. It's more like suing the city for allowing the person who shot you to walk on the street where you got shot.
Oh, and not that it's impossible to give up smoking, but when the tobacco companies alter their products to make it harder (while denying that this is what they're doing) I think a smoker has a case against them. Imagine if you bought a piece of software that gradually (without telling you, and the support people deny this is happening) encrypted all your data to make it harder to export into another program, and then started corrupting your data, so at the end using the program wasn't even useful any more, but you still had to use it every day because otherwise your whole system would crash.
--
E_NOSIG
It was a Bavarian court that found Felix Somm (the then head of Compuserve Germany) guilty of disseminating pornography and handed down a suspended prison sentence. Then as now, the company were held responsible for what users (in another country) had posted on the web.
That verdict provoked uproar in Germany and did not survive the appeal. It is too early to see if this bit of idiocy is going to go the same way, but the waves it is making are not as visible.
The previous verdict was considered an embarrassment to Germany in general and Bavaria in particular.
Mielipiteet omiani - Opinions personal, facts suspect.
German law knows nothing about ISP liability as such (I think), they are stretching a law here to treate AOL as they would a publishing house.
Then again, AOL *is* a publishing house!
Mielipiteet omiani - Opinions personal, facts suspect.
Several years ago Bavarian police got after Compuserve because they were making (gasp!) pr0n available from their servers. Compuserve responded by CYA: they couldn't stay in business if they had to censor every packet, so they shut down in Germany rather than get creamed in court.
Of course, the rest of the German users, as well as all of the other ISPs, decided that this was a Really Bad Idea and very shortly sanity prevailed.
At this very moment, I'm confident that every single ISP doing business in Germany is letting the Powers That Be know that in light of this decision they have no choice but to cease operations in Germany (or possibly the entire EU).
Let's see what that kicks off.
Lacking <sarcasm> tags,
It requires about three generations for a fundamental social concept (e.g. personal responsibility, freedom of speech) to fully "take". It hasn't been that long yet -- some of the soldiers who imposed a free Western state on one half of Germany are still alive, and some of the computers built when it came to the other half are still in use.
/.
/. If the government wants us to respect the law, it should set a better example.
> ... will just require that all purchasers of lead pipes undergo psychological profiling prior to the sale
Didn't the Germans already do a very efficient job of this back in about 193[89]? At least kids in the US today aren't getting gassed over the results -- yet.
I'm sorry to see this ruling, but it doesn't surprise me. Many european countries have government-owned telecommunications, or have had them until very recently. Their courts are used to this being the norm, unlike in the US.
The real problem with this, or any other simmilar rulings, is they are unenforcable. Even if AOL wanted to monitor traffic this closely, I can't see how they could do it without severely crippling their connectivity.
I wish the damn music industry would figure out that if they sold music the way people want to buy it, they wouldn't have to use their lawyers so much...
----- Leghorn "Not responsible for program content"
How about, when they are incapable of vetting every one of their customers' web page uploads?
Hellooo... they did. That they can be sued even after complying with a request to remove material they were not previously aware of is absolutely astonishing.
--
This comment was brought to you by And Clover.
You see, in the U.S., if someone leaves a bar drunk, drives away, gets into an accident, and hurts someone, you can sue the bartender (or more accurately, the bar itself) for letting the guy get so drunk in the first place.
Granted, the whole point is to prevent bartenders from pushing people to buy so much alcohol that they get wasted, but it's another example of spreading the blame to as many people as possible instead of just the ones who are responsible.
And the men who hold high places must be the ones who start
To mold a new reality... closer to the heart
It's such an easy problem to solve...
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
AOL Germany said it would appeal. It argued that it lacks technical means to monitor the service's huge data flow and that it had closed down the forum where music was illegally swapped after learning of it.
That is: They acted like any other ISP, removing files and/or accounts when abuse is reported, but not monitor every file themselves.
How do you suggest any ISP to guarantee that no account will ever be used for illegal activities? They can punish the "pirates" they catch, but not prevent all pirating.
Would you prefer a lawyer approving of *every* *single* *file* put on the net? That is what it would take to be "in control"
All opinions are my own - until criticized
Which they did. Read the article!
All opinions are my own - until criticized
Maybe not in general, but it happens.
AOL are not completely clueless, They claim that they took appropriate measures to shut down the page. I just can't believe that such a big player as AOL would open themselves for a lawsuit by not removing illegal material after being informed. If *their* effort (whatever it was) is not enough *no* ISP will be safe.
All opinions are my own - until criticized
It is just that you and I are not disinterest bystanders. The effect of these actions on us is that the barriers to entry for ISP's are raised. We get less choice of ISP's and less services. But we can't get any representation in this legal process! We have to go aroundabout to lobby for laws to stop this kind of thing. This is more complicated and is hard.
I am just dreaming here, but maybe if the courts are not just about one-party versus another, but also have third party, public interest kind of representation ... (cut to John Lennon's Imagine)
...*nix users go on about pipes (and how great they are) at every given chance.
What next, suing Home Depot for selling the lead pipe that killed Mr. Boddy?
We all know this is FUD CmdTaco, everyone knows Mr. Green was killed by the lead pipe (in the kicthen if you where wonder), and Mr. Blue was killed with the rope (IIRC in the bathrom).
And who exactly is Mr. Boddy, you twisted pet name for cowboy neil? Get with the program CmdTaco, if you check altavisa, google or yahoo "people" search, there has never and will be never a Mr. Boddy (there is a Mrs. Booty if you are wondering).
So please explain to us, the public, the ACs and the "hot grits" trolls, explain to us, on that frightfull night who did you REALLY kill Mr. CmdTaco?!? Admit it The Mr. Boddy murders where nothing more then a cover up played wonderfully by you the CIA! Admit it Mr. CmdTaco for the record What really happened?!?
"`Ford, you're turning into a penguin. Stop it.'" -THHGTTG
It was Hemos, in the Library with the lead pipe.
Sorry, I couldn't resist.
Seriously though. This is messed up. The eLegal system is getting so messed up because the judges don't have a clue about how servers/IPS/Content Providers work. When do we get to the point where we just give up and say "Fuck it"? It isn't worth the legal hassels to be online. I can't put Source Code on my homepage because it's free speach but corporate America doesn't like it. I'm afraid of putting an address book on my webpage because I'm now responsible for anything that goes onto my servers. I can't use one-click shopping or affiliate programs because Jeff Bezos owns those ideas.
WTF? What ever happened to free speech online? Time to start supporting the EFF more...
kwsNI
It seems to me that most people here don't know the german telco laws, so I'd like to explain some stuff here:
FAIK:
There are some contents which are illegal here in Germany (there might be more):
a) child abuse, sexual acts with animals
b) copyright violating stuff
c) racist / nazi propaganda , propaganda against the constitution.
Copying at least of a) and b) are illegal.
Note, that watching pictures in a browser counts here as copying !
For c) at least widespreading like setting up pages with his stuff is illegal. (Might be copying , too.)
However a provider is NOT liable for information / data provided by 3'rd parties like forgein web pages etc and NOT liable for content published by users. So he is NOT liable when the users upload such data. But when he KNOWS about the illegal stuff, he MUST block the access, when IT'S TECHNICAL & FINANCIAL affordable ! When he doesn't stop this access under these circumstances, then he might be sued.
So no evilness there.
The main cause why AOL was hold liable, was the fact that there were moderators controlling the forum for illegal stuff and that music is always protected by copyright (the German Urheberrecht is a little different from US/english copyright).
See the Financial Times Deutschland http://www.ftd.de/tm/in/FTDP08T9Z6C.html?nv=se
for details.
The second part seems a little questionable to me: it might be impossible to provide music without an explicit permission of the author.
You are the dot in slashdot !
Indeed, and that's why nobody requires it. But if I tell you that your server contains my copyrighted material, then you are obliged to either remove it, or meet me in court.
-- the most controversial site on the Web
(I note that the link is to the main page of canoe.ca, from which it is a bit of a search to locate the article)
As I said in the post that you scanned to minutely before accusing me of not having read something properly, the judgement almost certainly was that AOL had not made sufficient effort to shut the forum down and to remove existing copyrighted material. Hence its losing the case. This case will have turned on a lot of sophisticated legal argument and very specific facts which cannot be done justice in a short news piece, but the fact that AOL lost is at least prima facie evidence that they were in the wrong. In general, people with a good case, don't lose.
-- the most controversial site on the Web
Don't moderate this down. Contrary to popular opinion, there is no "-1, Unpatriotic" moderation. Also contrary to popular opinion, free speech is only one good thing among many, and should not be such a sacred cow. Property rights, for example, are a much stronger defence against government tyranny than the protection of the speech of people with nothing to say. There ought to be discussion on this issue, and that discussion should not be hampered by the refusal of some people to even consider part of the problem.
Ever noticed how the loudest advocates of free speech have never had an original thought in their life? Look at slashdot, for example. A hundred thousand people, all speaking miraculously with the same voice. I've never understood why the slashbots are so worried about "free speech". It's an undisputable fact that no government in history has put people in prison for mindlessly parroting the party line. You've nothing to fear.
-- the most controversial site on the Web
Under what circumstances does AOL have no control over the content of its servers?
When AOL is drunk?
When AOL is intoxicated by inhalation of $3 crack cocaine?
When AOL is asleep, and a tree falls on the telephone line, rendering AOL unable to communicate with the outside world?
When AOL has fallen victim to a bizarre and tragic cheese accident, and is suffering from "locked-in syndrome", so it can only communicate by twitching its nose, and its nose is tired?
When AOL is looking the other way?
When invisible monkeys have impersonated AOL to the phone company, and transferred all of AOL's phone lines to their underwater lair?
AOL is in control of what exists on its servers. It has the power to remove material at any time. If it wants to remove material it can, and if it refuses to do so after it has been informed that the material is illegal, it ought to expect some consequences. AOL's relationship to the material is far, far, more like that of a publisher to a pamphlet than that of a telephone company to a conversation, or for that matter of Home Depot to a piece of lead. The fact that the German courts failed to accept AOL's moves to remove the material is far more likely to indicate that these moves were token and not in good faith (of course, nobody wants to do anything so radical as to rad the transcripts) than anything else.
I like the idea of a super-free Internet with no responsibility as much as anyone else, but I also like the idea of retaining some privacy, control over my life and protection from slander. The Internet is not so vastly different from other media that we can lift the normal rules of human decency. --streetlawyer, abusing his +2 bonus since last week
-- the most controversial site on the Web
It seems like such a common-sense thing that you don't hold the provider liable! You're right, and this is also the standpoint of German law. It states that 'providers are only liable for outside content, if they know of this content and if it is possible and reasonable for them to prevent its use' (sorry for the bad translation). If it is the case (as it is presented in the article cited above) that AOL didn't know of the illegal content, this verdict will very likely not survive the appeal. Unfortunately, I don't have the text the judge used to justify this verdict, but another article I have read about this case indicates that he argued that AOL didn't act even though they knew about this piracy incident. This would make his standpoint at least a bit more sensible. The judge could of course simply have misunderstood the facts that were presented, because he didn't really know how everything worked technically. Incompetence of the judges with regard to the internet is unfortunately a relatively big problem in Germany jurisdiction at the moment, which has also caused several other silly verdicts.
The music companies surely have a right for compensation, but this should under no circumstances mean that basic principles of jurisdiction can simply be ignored.
ISPs should not be made liable simply because the content is present on their servers, but only if they can be called guilty. If they immediately shut down this piracy forum after they found out about it, there is no reason, why their actions should be punished with compensation, even though it is harder or even impossible to persecute the people who downloaded the music in this case.
I am really, really tired of hearing about things like this. It seems like such a common-sense thing that you don't hold the provider liable! After all, libraries still shelve books containing information on explosives and guns-- should we hold them liable for acts of terrorism?
When lawn darts were decided to be so dangerous they should be taken off of the market, were toy stores sued? Nope. It was the makers of the lawn darts! If you post crap on the web, it should be your behind that gets sued, not your provider's. ESPECIALLY if they torpedoed your site as soon as they knew about it!
It seems that this is occuring with such frequency that there must be some fundamental viewpoint I'm missing. If the legal systems of various countries are ruling in this fashion, there must be at least a tiny argument for their side that I am missing. If anyone could provide this (so we can ponder and rebuff it) I would be very very grateful. I simply cannot think of any reason that this sort of ruling is morally or commonsensically defensible!!
I'm not sure the idea of common carrier status translates to German. In the US it is at least hoped that ISPs are common carriers. I don't believe it has been tried in court, yet. Please tell me if it has.
Interestingly, since AOL pulled the content, they were no longer common carriers. If an ISP monitors or censors their customer's content in any way, they endanger their common carrier status. I worked for an ISP that had a policy to not remove anything, even when asked by customers, for this reason. It was up to the customers to fight it out, bring legal action against eachother, etc. But, you better believe that the ISP helped the authorities in any way they could (assuming proper permits, etc), just like a phone company.
Even if you are told about an incident, offensive is in the eye of the beholder. Illegal is a different story. In my mind, this company should have gone to the authorities to prosecute those performing the illegal act. After the appropriate permits, warrants, etc. had been presented, AOL would have only been in trouble if it didn't help. Maybe I should start a country...
What next, suing Home Depot for selling the lead pipe that killed Mr. Boddy?
Naw, it'll never come to that. Home Depot will just require that all purchasers of lead pipes undergo psychological profiling prior to the sale. Eventually, there will be 5-day waiting periods and background checks prior to the sale of anything more harmful than mini-marhsmallows (buying the regular sized ones will require a check, since they're large enough to block someone's wind pipe).
This has nothing to do with AOL being American - that sort of legal racism is one thing that is not involved here.
The German government will eventually have to come up with a law defining ISP responsibility (as will the British govt); until then, this sort of stupidity can hit anywhere. No laws have been passed yet because the parliaments consist of people who do not have a clue in this area.
Sounds familiar?
Mielipiteet omiani - Opinions personal, facts suspect.
You're holding up the nation that started the century by tearing down the balance-of-power system that had given Europe a century of peace, then followed up with a full-blown episode of national psychosis, as "mature"?
This is a definition of "mature" with which I am unfamiliar.
/.
/. If the government wants us to respect the law, it should set a better example.
If AOL (and other ISPs) suddenly withdrew from Germany, what would happen?
Maybe other countries would see that a law like this isn't such a great idea?
Now, where to start?
...unfortunately, if it goes through, it probably won't be handled very well.
ISP's cannot control what is on their servers, of course. Data simply moves around too fast for that, and their servers rely on too many external sources.
AOL, though, is different. The AOL system is totally senf-contained. In short, AOL can control what's on their internal servers (Web servers are another matter). This makes them unique among online providers. And should they be liable for their content? Perhaps. They should certainly be liable for their users, whom they actually can teach such things as Net etiquette but refuse to do so (again, another case where AOL's self-contained system makes this possible).
The problem with the ruling is, courts aren't quite that smart yet. They won't get that AOL is unique among online providers. They'll think that everyone can control their servers like AOL can. And this is the problem, because that's simply not true.
So in the end, I'm afraid I've got to favor letting AOL off the hook. Simply because if AOL loses, the precedent will be used where it doesn't apply by people who don't know any better.
While we're at it, sue God for giving us bodies, brains, eyes and vocal cords, which can all be misused! Darnit God be more careful next time!