A German court recently declared JDownloader, an open source download program, illegal for copyright infringement because of an add-on tool used to save encrypted video streams. The ruling, which holds JDownloader responsible for the optional contributions of a third-party, a feature that had been removed by the time of the ruling.
For open source development, this is a disturbing ruling. Already in the United States, third-party liability create risk for software and service providers worried about how consumers will use their products. This legal concept of contributory infringement was used to ban file-sharing services like Napster and is used to block websites and software that are used to share copyrighted content. However, rarely are the providers of the software themselves infringing on copyright, simply the software can be used for that purpose.
The German court ruling takes this concept even further by declaring an entire software illegal because of code written by a third-party. JDownloader already can be used for downloading copyrighted content – it downloads links from file lockers like Rapidshare. The issue in this case was over an add-on that downloaded encrypted video streams, which meant circumventing DRM. Even though JDownloader removed this add-on, it was still held responsible.
Consider how this might apply to other software. There are similar add-ons for Google Chrome and Firefox. Many third-party tools allow for downloading YouTube videos or copying music off Spotify. It’d be hard to imagine a U.S. court banning these products (though YouTube is fighting a billion dollar lawsuit).
This is why the German court ruling should still make Americans nervous. The internet doesn’t differentiate between court jurisdictions. A website made available to one country will likely be accessible from any other. The fear is that countries may race to the bottom with restrictive court rulings banning important technological innovations out of fear of how they might be misused. Germany’s ban of JDownloader is unlikely to lead ot its removal from the internet, but it could impose a chilling effect on future development, both for contributors to JDownloader, and new software developers deciding whether they should allow third-party contributions. Having open and vibrant communities has helped make useful products even better. These communities should be encouraged and incentivized, not stifled and scared away.