Proceedings were brought in 1998 by Hit Bit Software which
realised that its MIDI (Musical Instrument Digital Interface) music
files were being transferred illegally by individuals using the AOL
service. Hit Bit argued that, since the MIDI files could only be
played on computer, AOL should be liable for the actions of its
subscribers.
The court said that AOL should have prevented the downloading of
copyrighted music in MIDI files. It said that the ISP should have
been aware of potential copyright problems since it used volunteer
‘scouts’ who monitored the service.
AOL in Germany said it failed to understand the decision. A
spokesman for the ISP said, “We are only the messenger. Nobody
would have sued Royal Mail or Deutsche Post for delivering a
package that contained illegal CDs.”
AOL urged music companies to step up their own efforts to
protect copyright. However, the German music industry welcomed the
verdict. A spokesman for Gema, Germany’s copyright association,
described it as “a milestone in implementing copyright on the
net.”
The case could have serious ramifications for the German ISP
industry – it could mean that ISPs may have to take steps to scan
files transferred between users for copyrighted music.
This is not the first German case to cause concern to ISPs. In
1998, the then German head of CompuServe was convicted on criminal
charges for failing to block access to child pornography. The
decision was overturned a year later.
It is not yet known whether or not AOL will appeal the most
recent decision.
There is an EU draft Directive on Certain Legal Aspects of
Electronic Commerce in the Internal Market which should become law
in the course of this year and which will apply to Germany. If the
draft becomes law in its present form, it is unlikely that an ISP
would incur such liability.
