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DMCA - Does it apply outside of the USA?
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DMCA - Does it apply outside of the USA?

Hello,

I do not know alot about the law system, thats why i want input on this from the LET community!

Example:

I'm from the Netherlands i rent a server in Germany, somehow i downloaded a file thats DMCA protected with the server !O:
would the DMCA be able to reach out to me and take action?

My view:

DMCA is a organization thats protecting American content
my server provider in Germany could ignore the DMCA request and I cant be hold accountable for downloading DMCA protected content.

In the Netherlands we have our own anti-piracy organizations (Example: BREIN)
only if i download dutch content protected by BREIN i'd be accountable right? and server provider only if the content is protected in Germany?

Could someone help me solve this confusion?

«13

Comments

  • NyrNyr Community Contributor, Veteran

    DMCA doesn't apply in the EU. Copyright laws do.

  • DMCA is an Act, it's not an organization.
    If the company in Germany you are renting server from is registered in the USA (LLC, LLP, Series LLC, INc and so on), then DMCA would apply. If it's not an american company, then DMCA does not apply.
    DMCA has limited extraterritorial reach.
    But on the other hand, each country has it's own copyright laws.

    Thanked by 1Mark_R
  • VDS6VDS6 Member
    edited December 2013

    @Nyr said:
    DMCA doesn't apply in the EU. Copyright laws do.

    Not true. A lot of internet companies are registered in the state of Delaware, USA but operating abroad. DMCA has a binding extraterritorial reach if your are an american company operating abroad.

    Like us, we do operate in EU, NL, but have to comply with DMCAs because we are a business entity registered in the US.

  • NyrNyr Community Contributor, Veteran
    edited December 2013

    @VDS6 said:

    Yeah, I thought it was implicit in my statement. If the company is American, they obviously need to comply with American law too.

  • The company is in Germany and their server i use aswel.

  • NyrNyr Community Contributor, Veteran

    @Mark_R said:
    The company is in Germany and their server i use aswel.

    Then ask them if they ignore DMCA.

    That doesn't make you unaccountable for downloading copyrighted material anyway (although in practice you will not have problems just for downloading).

  • @Nyr said:
    That doesn't make you unaccountable for downloading copyrighted material anyway (although in practice you will not have problems just for downloading).

    I did ask them too, their reply was:

    If we receive a complaint, in most cases the content probably violate German law and our
    TOS, too.

    the reason i ask about it here is to confirm, eliminating all confusion about it
    i dont like suprises much.

  • NyrNyr Community Contributor, Veteran

    @Mark_R said:

    They were pretty clear. They comply with valid DMCA notices, as they notify them of an user hosting or transmitting copyrighted material anyway.

  • DomainBopDomainBop Member
    edited December 2013

    @Mark_R said:
    Hello,

    I'm from the Netherlands i rent a server in Germany, somehow i downloaded a file thats DMCA protected with the server !O:
    would the DMCA be able to reach out to me and take action?

    My view:

    DMCA is a organization thats protecting American content
    my server provider in Germany could ignore the DMCA request and I cant be hold accountable for downloading DMCA protected content.

    You're confusing DMCA.com (a commercial site owned by a Canadian company that sells "DMCA" protection services and has no legal authority) with the U.S. Digital Millennium Copyright Act (DMCA).

    The DMCA law only applies outside of the US if:

    1. you're a US citizen (hosting "offshore" if you're American might prevent your offshore website from being taken down but it won't prevent the copyright holder from suing you)

    2. US owned businesses, including their hosting locations and data centers outside the US, are subject to the law and have to honor DMCA complaints.

    Thanked by 1Mark_R
  • Mark_RMark_R Member
    edited December 2013

    @Nyr said:
    They were pretty clear. They comply with valid DMCA notices, as they notify them of an user hosting or transmitting copyrighted material anyway.

    Okay, so what if they comply and redirect them to me?
    i still live in the Netherlands, could DMCA charge me/ take it to court?
    because i personally think they cannot do this.

  • @DomainBop said:

    Yes i mean the U.S. Digital Millennium Copyright Act (DMCA)
    my apologies if i didnt word myself correctly, english is not my primary language.

  • Onshore hosts mostly follow dmca while offshore host give you a flexible option or totally ignore it

  • Yes

  • Thank you guys for commenting
    i think i've got the total picture now.

    I will keep this thread open for others to share their view,
    just dont go off-topic too much stay on the road.

  • skagerrakskagerrak Member
    edited December 2013

    @Mark_R said:
    I do not know alot about the law system, thats why i want input on this from the LET community!

    The copyright laws of the mebers of the WTO are much alike as they are based on the TRIPS-agreement. Nonetheless, if a server is located in Germany, German copyright laws will be applicable. The provider can hold you accountable for the infringement (EU judicial cooperation in civil matters). This means ofc that the provider must be a German provider. If he can't -- because the respective Dutch court does not execute the court warrant (which happens) -- then the provider will be held accountable according to a construction named "liability for disturbance" based on German law.

    Thanked by 1Mark_R
  • Expand on @skagerrak's good comment, the TRIPS agreement was implemented as a EU Copyright Directive which has left each member state to merge it with their own laws. A later Enforcement Directive followed. Both have articles that require member states to include injunctive relief against hosts that partake in the infringement. Although no safe-harbor is spelled out like the DMCA, typically these liabilities are implemented to be limited if an ISP performs duties to not promote infringement - hence why some ISPs will pass on a DMCA notice - or effect takedowns themselves if its obvious. It doesn't take on the same strict meaning as it does in the US, but it is still considered a notice of infringement.

    As for being in NL, Directive 6 in the Enforcement Directive allows ex parte enforcement. They could go to court in Germany and file for damages. If this was commercial, Directive 9 allows freezing of bank assets.

    • note the Directives are not law. Somewhere in German law is the implementation of these Directives with their own subtle nuances.
    Thanked by 1Mark_R
  • To be honest,

    i dont think that people from the Netherlands can freely download DMCA content without problems in the future
    BREIN is growing and taking more extreme measures, expanding its approaches and target ranges just like the other content protectors
    its just a matter of time before the anti-piracy companies team up and enforce globally the content rules

    How do you guys see this playing out?

  • Again, DMCA does not matter in the EU as long as you are a EU customer and the provider is a EU company. DMCA is needed in the US because their legal system follows case law and because of the WTO-membership they needed to incorporate civil-law elements. That is comparable to the UK (as the founding country of case/common law) that slowly growths into civil law because of their membership within the EU.

    What is of interest to you is the copyright-law of your country and the international instituations your country is connected with. Afaik the Netherlands have a rather progressive constitutional law that makes international treaties somehow directly applicable. So there might be some obligations and rights that might find their direct way into your daily life. This is, for example, not true for the German speaking legal systems. International treaties have to be first transferred into national law to become applicable. This can be a good or a bad thing. Because the legislator might be slow in the process of incorporating that legal system or he might find it good to even make further regulations.

    Thanked by 1Mark_R
  • BrianHarrisonBrianHarrison Member, Patron Provider
    edited December 2013

    @Mark_R said:
    Hello,
    I'm from the Netherlands i rent a server in Germany, somehow i downloaded a file thats DMCA protected with the server !O:
    would the DMCA be able to reach out to me and take action?

    What you want is a practical answer to a real-world situation. I can see that you're getting a lot of answers regarding the technical jurisdictional limitations of the DMCA. That's not what you need to know.

    "What will happen if I get a DMCA takedown request on my service?"

    It depends. Germany has copyright laws and even though DMCA is not German copyright law. Your German host will still be aware via the DMCA takedown request that there are likely copyright violations taking place on your server. A DMCA takedown request is just another way of saying "Hey, you're hosting copywritten material, please take it down or we'll sue." Whether or not your host chooses to suspend your service is up to them. More often than not, your host will just ignore the DMCA request or merely forward it along to you and say "fix it". DMCA takedown requests themselves are not legally binding--even in the USA. What would be legally binding is if you received a lawsuit over the copywritten material and the judge slaps you with an injunction to remove the material.

    Thanked by 1Mark_R
  • ngstargatengstargate Member
    edited December 2013

    @Mark_R said:
    Hello,

    I do not know alot about the law system, thats why i want input on this from the LET community!

    Example:

    I'm from the Netherlands i rent a server in Germany, somehow i downloaded a file thats DMCA protected with the server !O:
    would the DMCA be able to reach out to me and take action?

    My view:

    DMCA is a organization thats protecting American content
    my server provider in Germany could ignore the DMCA request and I cant be hold accountable for downloading DMCA protected content.

    In the Netherlands we have our own anti-piracy organizations (Example: BREIN)
    only if i download dutch content protected by BREIN i'd be accountable right? and server provider only if the content is protected in Germany?

    Could someone help me solve this confusion?

    For example, if you have rented a server at Hetzner.
    You receive abuse from [email protected] with subject "Copyright Infringement":

    Dear XXXXXXXXXX,

    We received information about spam or abuse from [email protected]. Please take all necessary measures to avoid this in the future.

    Furthermore we request that you send a short response within 24 hours to us and to the complainant. This response should contain information about how this could happen and what you intend to do about it.

    How to proceed:

    A technician will check the data and coordinate further proceeding. If we received multiple complaints, the situation can lead to a server blocking.

    :(

    Thanked by 2Mark_R postcd
  • joepie91joepie91 Member, Patron Provider
    edited December 2013

    The key here is to understand this:

    The DMCA (Digital Millenium Copyright Act) is a US act that, amongst other things, covers notice-and-takedown procedures (ie. the "DMCA notifications" you would receive. The DMCA procedure - and its protections - only apply to the US.

    However, in the EU, the situation is different. Most (all?) EU countries have a common-sense-based notice-and-takedown protocol, which basically says that "the provider has to be notified of it in a reasonable/reliable manner". The exact interpretation of this varies by country, but it usually means in practice that "any clear notice that lays a claim to copyrighted works, and clearly indicates where those works reside" will do. This includes DMCA notices, as long as they fulfill these requirements.

    Basically, in European law, a DMCA notice isn't a DMCA notice - it's just a regular infringement notification that happens to have a particular format that means something in the US. Many hosts will therefore treat DMCA notifications as regular copyright infringement notices/reports, even if they do not have to comply with the particular provisions stated in the DMCA legislation - it's just another notice.

    Obviously, IANAL (I Am Not A Lawyer), so if your project depends on this, I'd recommend consulting one :)

    Thanked by 2Mark_R tchen
  • IxamHostingIxamHosting Member
    edited December 2013

    DMCA does not apply here. However some datacenters will act on them even they dont have to

  • Mark_RMark_R Member
    edited December 2013

    @joepie91 said:
    Obviously, IANAL (I Am Not A Lawyer), so if your project depends on this, I'd recommend consulting one :)

    the chance that my server provider will recieve a complaint is very low
    im using my server as Seedbox in Private Tracker communities, no public torrent swarms.

    i really appreciate the amount and detail of replies i got in this thread, i did not expect this!
    this thread might be useful for many other people as refference
    when i was searching on my own about DMCA and everything around it i always came down on forums
    where people had some kind of not accurate answer, like they where just sharing their opinion without knowing anything about it.

    Again, thank you, its good to see different angles.

  • joepie91joepie91 Member, Patron Provider
    edited December 2013

    Mark_R said: the chance that my server provider will recieve a complaint is very low im using my server as Seedbox in Private Tracker communities, no public torrent swarms.

    If you are just using it as a seedbox, the chance that you will actually receive a DMCA - even if you normally would for a seedbox - is very low. Most of these 'agents' don't even bother sending them in the first place, unless the server is in the US.

    I should point out, however, that some datacenters in Germany - such as Hetzner - really don't like torrenting, even if it's for personal use. I'd recommend looking for a datacenter that is known not to make a big deal out of it.

    Thanked by 1Mark_R
  • @joepie91 said:
    I should point out, however, that some datacenters in Germany - such as Hetzner - really don't like torrenting, even if it's for personal use. I'd recommend looking for a datacenter that is known not to make a big deal out of it.

    I usually lookup hosts that do not mention torrent/filesharing
    i've personally never used Hetzner but thanks for the info,
    its good to know what the standpoint of a host is before buying
    usually i will contact them before aswel just to confirm that torrenting is no problem.

  • iSidleiSidle Member
    edited December 2013

    I recommend you to look for a VPS in Romania, they usually don't act on DMCA there and I'm pretty sure they just ignore about any copyright.
    such as: http://www.clues.ro/en/VPS_servers

  • skagerrakskagerrak Member
    edited December 2013

    I guess you've read what they actually write?

    "In general Bahnhof is not liable for content that you as a client publishes. You are! This follows from EU's E-commerce Directive 2000/31/EC, Section 4 (Articles 12-15), which was transposed into Swedish law as Act on Electronic Commerce and other Information Society Services [Lag (2002:562) om elektronisk handel och andra informationssamhällets tjänster]. Hosters do not have a general obligation to seek facts or circumstances indicating illegal activity. When the hoster obtains such knowledge it may however be required to remove and block such content."

    Thanked by 1Mark_R
  • DMCA is an act passed in the US, it doesn't apply to anyone outside the US

  • @skagerrak said:
    "In general Bahnhof is not liable for content that you as a client publishes. You are! This follows from EU's E-commerce Directive 2000/31/EC, Section 4 (Articles 12-15), which was transposed into Swedish law as Act on Electronic Commerce and other Information Society Services [Lag (2002:562) om elektronisk handel och andra informationssamhällets tjänster]. Hosters do not have a general obligation to seek facts or circumstances indicating illegal activity. When the hoster obtains such knowledge it may however be required to remove and block such content."

    Sharp.

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