The First Civil Senate of the Federal Court of Justice, which is responsible for copyright law, among other things, has ruled in two cases on the liability of companies that provide access to the Internet (access providers) for copyright infringements by third parties.
The plaintiff in the proceedings I ZR 3/14 is the Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA). It administers copyright rights of use in musical works for composers, lyricists and music publishers. The defendant is Germany's largest telecommunications company. It was the operator of a telephone network, in the meantime maintained by a company affiliated to the group, via which its customers had access to the internet. As a so-called access provider, the defendant also provided its customers with access to the website "3dl.am".
According to the plaintiff, it was possible to access a collection of links and URLs via this website, which made it possible to download copyrighted musical works that had been illegally uploaded to sharehosters such as "RapidShare", "Netload" or "Uploaded". The plaintiff sees this as an infringement of its perceived copyrights. It claims that the defendant has to prevent such infringements. The plaintiff filed a claim against the defendant for an injunction to enable third parties to access links to the works in dispute via the website "3dl.am" via internet access provided by the defendant. The District Court dismissed the action. The Court of Appeal dismissed the plaintiff's appeal. In the appeal allowed by the Court of Appeal, the plaintiff continues to pursue its claims.
The plaintiffs in the proceedings I ZR 174/14 are producers of sound recordings. The defendant is the operator of a telecommunications network through which its customers can access the internet. As an access provider, the defendant also provided its customers with access to the website "goldesel.to".
According to the plaintiffs, this website provided access to a collection of links and URLs to copyrighted musical works that had been illegally uploaded to the file sharing network "eDonkey". The plaintiffs see this as an infringement of their copyright ancillary copyrights under § 85 UrhG. The plaintiffs filed a claim against the defendant for an injunction to enable third parties to access links to the disputed works via the website "goldesel.to" via internet access provided by the defendant. The Regional Court dismissed the action. The Higher Regional Court dismissed the plaintiffs' appeal. In their appeal, which was allowed by the Court of Appeal, the plaintiffs continue to pursue their claims.
The Federal Supreme Court dismissed the appeals in both proceedings.
A telecommunications company that provides third parties with access to the internet can, in principle, be held liable as a "Stoerer" (interferer) by a rights holder to prevent access to internet pages on which copyrighted works are unlawfully made publicly accessible. In the case of an infringement of absolute rights (such as copyright or ancillary copyright), anyone who - without being a perpetrator or participant - in any way intentionally and adequately causally contributes to the infringement of the protected legal interest is liable as a "Stoerer" (interferer), provided that he has violated reasonable duties of examination. Against the background of Article 8(3) of Directive 2001/29/EC on copyright in the information society, German law must be interpreted in conformity with the Directive and must therefore provide for the possibility of imposing blocking orders on intermediaries of Internet access.
The provision of access to websites with content that infringes copyright is an adequate-causal contribution by the telecommunications companies to the infringements by the operators of the websites "3dl.am" and "goldesel.to". The affected fundamental rights under Union law and national law of the copyright holders' protection of property, the telecommunications companies' freedom of occupation and the internet users' freedom of information and informational self-determination are to be included in the balancing of interests to be carried out in the context of the examination of reasonableness. Blocking is not only reasonable if exclusively infringing content is made available on the internet page, but already if, according to the overall relationship, lawful content does not outweigh unlawful content. The possibilities of circumvention existing due to the technical structure of the internet do not prevent the reasonableness of a blocking order, provided that the blocks prevent access to infringing content or at least make it more difficult.
However, from the point of view of proportionality, "Stoererhaftung" (Breach of Duty of Care) of the company providing access to the internet can only be considered if the right holder has first made reasonable efforts to take action against those parties who - like the operator of the website - have committed the infringement themselves or - like the host provider - have contributed to the infringement by providing services. Only if the recourse against these parties fails or lacks any prospect of success and therefore would otherwise create a gap in legal protection, the recourse against the access provider as interferer is reasonable. Operators and host providers are much closer to the infringement than the person who only generally provides access to the internet. In determining the parties to be claimed against with priority, the right holder must conduct investigations to a reasonable extent - for example, by commissioning a detective agency, a company that conducts investigations in connection with unlawful offers on the Internet, or by involving the state investigating authorities. This requirement is lacking in both cases decided today.
In the proceedings I ZR 3/14, the plaintiff obtained an interim injunction against the operator of the website "3dl.am", which could not be served at the address given at the time of domain registration. The plaintiff withdrew the injunction application directed against the host provider, as his address also proved to be incorrect. The plaintiff could not be satisfied with the finding that the addresses of the operator of the website and the host provider were wrong, but should have undertaken further reasonable investigations.
In the proceedings I ZR 174/14, the action was dismissed because the plaintiffs did not take action against the operator of the websites with the name "goldesel". No action was taken against the operator because, according to the plaintiffs' submission, the identity of the operator could not be deduced from the website. The plaintiffs did not submit that they had taken further reasonable measures to discover the identity of the operator of the websites.
BGH, Judgment of 26.11.2015, I ZR 3/14
Lower courts:
Hamburg Regional Court - Judgment of 12 March 2010 - 308 O 640/08
OLG Hamburg - Judgment of 21 November 2013 - 5 U 68/10
and
BGH, Judgment of 26.11.2015, I ZR 174/14 - Liability of the access provider
Lower courts:
Cologne Regional Court - Judgment of 31 August 2011 - 28 O 362/10
OLG Cologne - Judgment of 18 July 2014 - 6 U 192/11
Source: Press release of the BGH
Goldberg Attorneys at Law 2015
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
