The First Civil Senate of the Federal Court of Justice, responsible inter alia for copyright law, has ruled in two proceedings on the liability of companies that provide internet access (access providers) for third-party copyright infringements.
The plaintiff in case I ZR 3/14 is the Society for musical performing and mechanical reproduction rights (GEMA). It asserts copyright exploitation rights for composers, lyricists, and music publishers regarding musical works. The defendant is Germany's largest telecommunications company. It operated a telephone network, since maintained by a group-affiliated company, through which its customers gained internet access. As an access provider, the defendant also facilitated its customers' access to the website “3dl.am”.
According to the plaintiff, this website allowed access to a collection of links and URLs that enabled the downloading of copyright-protected musical works, which had been unlawfully uploaded to share hosters such as “RapidShare”, “Netload”, or “Uploaded”. The plaintiff considers this an infringement of the copyrights it represents. It asserts that the defendant must prevent such infringements. The plaintiff sued the defendant for injunctive relief, seeking to prevent third parties from accessing links to the disputed works via the website “3dl.am” through internet access provided by the defendant. The District Court dismissed the action. The Higher Regional Court rejected the plaintiff's appeal. With the appeal on points of law admitted by the Higher Regional Court, the plaintiff continues to pursue its claims.
The plaintiffs in case I ZR 174/14 are phonogram producers. The defendant operates a telecommunications network through which its customers gain internet access. As an access provider, the defendant also facilitated its customers' access to the website “goldesel.to”.
According to the plaintiffs, this website allowed access to a collection of links and URLs leading to copyright-protected musical works that had been unlawfully uploaded to the file-sharing network “eDonkey”. The plaintiffs consider this an infringement of their ancillary copyright protection rights under Section 85 of the German Copyright Act (UrhG). The plaintiffs sued the defendant for injunctive relief, seeking to prevent third parties from accessing links to the disputed works via the website “goldesel.to” through internet access provided by the defendant. The District Court dismissed the action. The Higher Regional Court rejected the plaintiffs' appeal. With the appeal on points of law admitted by the Higher Regional Court, the plaintiffs continue to pursue their claims.
The Federal Court of Justice dismissed the appeals on points of law in both cases.
A telecommunications company that provides internet access to third parties can, in principle, be sued by a rights holder as a contributor to infringement to block access to websites where copyright-protected works are unlawfully made publicly available. Liability as a contributor to infringement for the violation of absolute rights (such as copyright or an ancillary copyright protection right) arises for injunctive relief when a party – without being the perpetrator or an accessory – contributes willfully and adequately causally to the infringement of the protected legal interest, provided that they have violated reasonable duties of examination. German law must be interpreted in conformity with Directive 2001/29/EC on copyright in the information society, Article 8(3), and must therefore provide for the possibility of imposing blocking orders against internet access intermediaries.
The provision of access to websites with copyright-infringing content constitutes an adequately causal contribution by telecommunications companies to the infringements committed by the operators of the websites “3dl.am” and “goldesel.to”. The balancing of interests to be undertaken within the framework of the reasonableness test must include the affected fundamental rights under Union and national law, namely the property protection of copyright holders, the freedom of profession of telecommunications companies, and the freedom of information and informational self-determination of internet users. A blocking order is considered reasonable not only when exclusively infringing content is hosted on the website, but also when the overall proportion of lawful content compared to unlawful content is negligible. The possibilities of circumvention due to the technical structure of the internet do not preclude the reasonableness of a blocking order, provided that the blocks prevent or at least impede access to infringing content.
However, liability as a contributor to infringement for a company that provides internet access is only conceivable, from the perspective of proportionality, if the rights holder has first undertaken reasonable efforts to proceed against those parties who – like the website operator – have themselves committed the infringement or – like the host provider – have contributed to the infringement by providing services. Only if action against these parties fails or lacks any prospect of success, and thus a gap in legal protection would otherwise arise, is it reasonable to proceed against the access provider as a contributor to infringement. Operators and host providers are significantly closer to the infringement than the party who merely provides general internet access. In identifying the parties to be primarily proceeded against, the rights holder must undertake reasonable investigations – for example, by engaging a detective agency, a company that conducts investigations related to unlawful online offerings, or by involving state investigative authorities. This prerequisite was not met in either of the cases decided today.
In case 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 provided during domain registration. The plaintiff withdrew the application for an injunction directed against the host provider, as its address also proved to be incorrect. The plaintiff should not have been satisfied with the finding that the addresses of the website operator and the host provider were incorrect but should have undertaken further reasonable investigations.
In case I ZR 174/14, the action was dismissed because the plaintiffs did not proceed against the operator of the websites designated “goldesel”. No action was taken against him because, according to the plaintiffs' submission, the identity of the operator could not be ascertained from the website. The plaintiffs did not allege to have undertaken further reasonable measures to uncover the identity of the website operator.
Federal Court of Justice, Judgment of 26.11.2015, I ZR 3/14
Lower Courts:
District Court Hamburg – Judgment of 12 March 2010 – 308 O 640/08
Higher Regional Court Hamburg – Judgment of 21 november 2013 – 5 U 68/10
and
Federal Court of Justice, Judgment of 26.11.2015, I ZR 174/14 – Liability of the Access Provider
Lower Courts:
District Court Cologne – Judgment of 31 august 2011 – 28 O 362/10
Higher Regional Court Cologne – Judgment of 18 July 2014 – 6 U 192/11
Source: Press Release of the Federal Court of Justice
Goldberg Attorneys 2015
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
