Lia­bi­li­ty of an eBay trader

Injunc­ti­ve reli­ef: Lia­bi­li­ty of an online music retail­er due to the dis­tri­bu­ti­on of a music title inf­rin­ging per­so­nal rights

In its judgment of July 26, 2019 (Case No. 142 C 2276/19), the Munich Local Court ruled that online retail­ers have no duty to check for any inf­rin­ge­ments of per­so­nal rights for music titles sold on their online stores and the­r­e­fo­re do not have to reim­bur­se attorney’s fees for rela­ted war­nings.

The case dealt with the ques­ti­on of the ext­ent to which an online music retail­er is obli­ga­ted to check the con­tent of the music dis­tri­bu­ted on its online store and, as a con­se­quence, can be held lia­ble as an inter­fe­rer.

The judgment is based on the fol­lo­wing facts; the plain­ti­ffs are underage daugh­ters of a cele­bri­ty cou­ple well-known on Ger­man TV, the defen­dant is a com­mer­cial Inter­net trader for music CDs on the eBay plat­form. In preli­mi­na­ry injunc­tion pro­cee­dings befo­re the Munich I Regio­nal Court, the plain­ti­ffs had obtai­ned an order that two Ger­man rap­pers refrain from using cer­tain text pas­sa­ges in one of their songs, as the­se had vio­la­ted the plain­ti­ffs’ gene­ral right of per­so­na­li­ty.

The defen­dant had offe­red the album in dis­pu­te for sale on its web­site. After obtai­ning the preli­mi­na­ry injunc­tion, the plain­ti­ffs then issued a war­ning to the defen­dant and reques­ted him to cea­se and desist and to issue a decla­ra­ti­on to cea­se and desist with a penal­ty clau­se. The defen­dant, imme­dia­te­ly cont­ac­ted the plaintiff’s repre­sen­ta­ti­ve by tele­pho­ne and infor­med him not to dis­tri­bu­te the album any fur­ther. Howe­ver, sin­ce the lat­ter con­tin­ued to insist on the sub­mis­si­on of the cea­se-and-desist decla­ra­ti­on, the defen­dant ulti­m­ate­ly sub­mit­ted it, whereu­pon he recei­ved an invoice for the attorney’s fees. Howe­ver, the defen­dant refu­sed to pay the bill.

The plain­ti­ffs cla­im that the pur­po­se of the war­ning in dis­pu­te was to block all known dis­tri­bu­ti­on chan­nels for the song as quick­ly, effec­tively and, in par­ti­cu­lar, sus­tain­ab­ly as pos­si­ble in order to pre­vent, or at least con­tain, fur­ther dis­tri­bu­ti­on through com­mer­ce via the Inter­net. The plain­ti­ff is of the opi­ni­on that pre-tri­al attorney’s fees pur­su­ant to sec. 823 para. 1 BGB in con­junc­tion with. Art. 1 para. 1 GG and­Art. 1 para. 1 GG iVm Art. 2 para. 1 GG, or alter­na­tively from manage­ment wit­hout a man­da­te pur­su­ant to § 683 BGB.

The plain­ti­ffs, were cle­ar­ly iden­ti­fia­ble in the dis­pu­ted text and the depic­ted inhu­man text part was dis­se­mi­na­ted by the defen­dant in the con­text of its com­mer­cial Inter­net trade in public. The dis­pu­ted text is cha­rac­te­ri­zed by sexu­al and at the same time extre­me­ly vio­lent desi­res / ide­as of the two rap­pers. The text also con­sti­tu­tes a cri­mi­nal offen­se of thre­at under § 241 of the Cri­mi­nal Code and insult under § 185 of the Cri­mi­nal Code. Through the two stanz­as, the plain­ti­ffs would be vio­la­ted in their inviolable human digni­ty accor­ding to Art. 1 Para. 1 GG is vio­la­ted, so that no balan­cing would have to be car­ri­ed out. The unlawful­ness of the text lines was imme­dia­te­ly and wit­hout fur­ther ado reco­gnizable even for lay­per­sons.

Through his acts of dis­se­mi­na­ti­on of the unlawful text, the defen­dant was a “Stoe­rer” (inter­fe­rer) under Sec­tion 1004 of the Ger­man Civil Code, and it was in his eco­no­mic inte­rest for the plain­ti­ffs to request him in advan­ce to sub­mit the cea­se-and-desist decla­ra­ti­on with a penal­ty clau­se in order to avo­id a more expen­si­ve legal dis­pu­te. The defen­dant had arran­ged for the trans­mis­si­on of the con­tent of the audio CD to its cus­to­mers its­elf and on its own respon­si­bi­li­ty and also sel­ec­ted the addres­sees of the con­tent. If, for reasons of cost, he takes the risk of not che­cking the lega­li­ty of the pro­ducts he offers before­hand, he must ulti­m­ate­ly bear this risk and its rea­liza­ti­on eco­no­mic­al­ly hims­elf.

The defen­dant claims that it is neces­sa­ry to look at the enti­re song in order to be able to reco­gni­ze that it is a mat­ter of iso­la­ted lines strung tog­e­ther that have no con­nec­tion with each other and do not fol­low any logic. The song also has no strin­gent lyrics that would run through the enti­re work. The­re was no action that vio­la­ted human digni­ty, nor was any vio­la­ti­on of per­so­nal rights open­ly reco­gnizable. It is a strin­ging tog­e­ther of various “punch lines” that do not repre­sent a fac­tu­al con­text.

With 2,000 CDs with a stan­dard play­ing time of 1:30′, lis­ten to all the recor­dings for 8 hours a day for over 375 days? This also went too far for the Bava­ri­an juris­dic­tion.

Court case against an eBay dea­ler becau­se of music cds

The defen­dant is of the opi­ni­on that the plain­ti­ffs are not entit­led to reim­bur­se­ment of pre-tri­al attorney’s fees. In par­ti­cu­lar, the defen­dant was not an aider and abet­tor of the main respon­si­ble
Rap­pers. The­re was neither inten­tio­nal nor negli­gent dis­se­mi­na­ti­on of the dis­pu­ted texts or lines. The defen­dant is not a direct inter­fe­rer. The defen­dant, as an Ebay trader, had sold a lar­ge num­ber of audio CDs on his sales page. He had pos­ted a varie­ty of dif­fe­rent music and was just not spe­cia­li­zed in a par­ti­cu­lar gen­re or artists. The defen­dant is also not lia­ble as an indi­rect inter­fe­rer. The defen­dant would have had to lis­ten to all of the sound recor­dings con­ti­nuous­ly at 8 hours for over 375 days with the con­stant­ly available titles of about 2,000 pie­ces with a stan­dard play­ing time of 1:30′. In the case of an online trade on eBay, a reac­ti­ve duty to veri­fy exists only with know­ledge. At most, the time at which the CD was pos­ted was decisi­ve, and it was not obvious to the defen­dant that one of the songs on the album might con­tain ille­gal con­tent. The unlawful­ness had been estab­lished only later in the con­text of the preli­mi­na­ry injunc­tion. In the preli­mi­na­ry injunc­tion pro­cee­dings, it had been pos­si­ble to cla­ri­fy with regard to the song in ques­ti­on that in the pre­sent case the plain­ti­ffs’ rights of per­so­na­li­ty out­weig­hed the rap­pers’ free­dom of art, alt­hough only a sum­ma­ry exami­na­ti­on had been car­ri­ed out here. Such a decis­i­on and legal assess­ment could not be pas­sed on to online retail­ers. When an inf­rin­ge­ment was judi­ci­al­ly deter­mi­ned, the defen­dant reac­ted imme­dia­te­ly after beco­ming awa­re of it and cal­led the plaintiff’s repre­sen­ta­ti­ve. When the lat­ter insis­ted on a cea­se-and-desist decla­ra­ti­on, the defen­dant imme­dia­te­ly sub­mit­ted it.

The court cor­rect­ly ruled that the cla­im should be dis­missed. In the opi­ni­on of the court, the defen­dant is lia­ble neither as a per­pe­tra­tor nor as an aider and abet­tor, nor as an inter­fe­rer, for the dis­se­mi­na­ti­on and making available to the public of the dis­pu­ted texts. A cla­im for dama­ges by the plain­ti­ffs in respect of the attorney’s fees incur­red pri­or to the pro­cee­dings on the basis of an inf­rin­ge­ment of the plain­ti­ffs’ gene­ral right of per­so­na­li­ty under §§ 1004 para. 1 p. 2, 823 para. 1, para. 2 BGB in con­junc­tion with 88 Art. 1 para. 1.2 Para. 1 GG was the­r­e­fo­re denied. Also a pos­si­ble cla­im for reim­bur­se­ment of attorney’s fees from § 683 BGB.

In this regard, the court sta­tes that if the­re is a risk of repe­ti­ti­on, a par­ty can be sued by the inf­rin­ged par­ty for injunc­ti­ve reli­ef if it unlawful­ly inf­rin­ges a pro­tec­ted right. Inf­ring­ers are both per­pe­tra­tors and par­ti­ci­pan­ts in an act of inf­rin­ge­ment as well as third par­ties who wil­lingly and ade­qua­te­ly-cau­sal­ly con­tri­bu­te to the inf­rin­ge­ment of the pro­tec­ted legal inte­rest, if they can be regard­ed as inter­fe­rers.

In this regard, it draws on the prin­ci­ples of the Munich Hig­her Regio­nal Court on book­sel­ler lia­bi­li­ty for injunc­ti­ve reli­ef from its judgment of Octo­ber 24, 2013 (see OLG Mün­chen, judgment of Octo­ber 24, 2013, Case No. 29 U 885/13, GRUR-RR 2014, 13).

“In prin­ci­ple, whoe­ver com­mits the inf­rin­ge­ment of an intellec­tu­al pro­per­ty right as an abso­lu­te right hims­elf is obli­ged to cea­se and desist as a per­pe­tra­tor. In this con­text, it does not mat­ter whe­ther he also knew or at least had to know the cir­cum­s­tances which jus­ti­fy the accu­sa­ti­on of inf­rin­ge­ment, i.e. acted cul­pa­b­ly. This alre­a­dy fol­lows from the fact that the sta­tu­to­ry pro­vi­si­ons pro­vi­de for a cla­im for injunc­ti­ve reli­ef wit­hout fur­ther ado in the event of an inf­rin­ge­ment, whe­re­as claims for dama­ges only if, in addi­ti­on, the inf­rin­ge­ment was also cul­pa­ble.”

OLG Munich, judgment dated Octo­ber 24, 2013, Ref. 29 U 885/13

In the opi­ni­on of the Munich Regio­nal Court, an adjus­t­ment based on fun­da­men­tal rights must take place in the area of trade­mark law. This is the only way to pre­vent a book­sel­ler from being held lia­ble wit­hout rest­ric­tion for the dis­tri­bu­ti­on of pla­gia­rism. The lat­ter was inde­ed entit­led to the con­trol of the crime, sin­ce he con­trol­led his own ope­ra­ti­on. Howe­ver, this would have the con­se­quence that the book­sel­ler would be expo­sed in an incal­culable man­ner to the risk of war­ning let­ters for alle­ged copy­right inf­rin­ge­ments and the asso­cia­ted cos­ts. The effort he would have to make in order to com­ply with such an inspec­tion obli­ga­ti­on would be out­side the bounds of what is reasonable and would call the enti­re busi­ness model into ques­ti­on. This encroach­ment encroa­ched on the scope of pro­tec­tion of the free­dom of the press gua­ran­teed by Artic­le 5 (2) of the Ger­man Basic Law, which also pro­tects the dis­tri­bu­ti­on acti­vi­ties of book­sel­lers.

In such a case, the­r­e­fo­re, a balan­cing of inte­rests bet­ween the com­pe­ting fun­da­men­tal rights of the bookseller’s free­dom of the press and the author’s right of owner­ship must be car­ri­ed out by way of prac­ti­cal con­cordance. The com­pen­sa­ti­on in this case would have to be made by a dif­fe­ren­tia­ted lia­bi­li­ty regime, which in prac­ti­ce is desi­gned in such a way that the lia­bi­li­ty of a book­sel­ler is limi­t­ed to such inf­rin­ge­ments that are com­mit­ted after he has been made awa­re of a clear inf­rin­ge­ment.

Accor­ding to the Munich Regio­nal Court, such a requi­re­ment leads to a fair balan­ce of inte­rests. Future acts of dis­tri­bu­ti­on are pre­ven­ted by the fact that the book­sel­ler is sub­ject to duties of inspec­tion from the time of know­ledge, in the event of non-com­pli­ance with which he is lia­ble at least as a deb­tor to cea­se and desist. His lia­bi­li­ty is limi­t­ed to the pri­vi­le­ge that book­sel­lers do not have to bear the cos­ts for a war­ning-like first noti­ce of inf­rin­ge­ment, but that it is sub­se­quent­ly their respon­si­bi­li­ty to stop copy­right inf­rin­ge­ments cor­re­spon­ding to the noti­ce. This result ade­qua­te­ly takes into account both the fun­da­men­tal right to pro­per­ty of the aut­hor and the posi­ti­on of book­sel­lers pro­tec­ted by free­dom of the press.

In the pre­sent case, the Munich Local Court fol­lo­wed the prin­ci­ples of this decis­i­on in sub­s­tance. The­se are trans­fera­ble to online sales of CDs. The court sta­tes in this regard:

The defen­dant is lia­ble neither as the per­pe­tra­tor of the inf­rin­ge­ment of per­so­na­li­ty rights nor as an aider and abet­tor of the rap­pers. He had neither know­ledge of the inf­rin­ging con­tent, nor had it been sub­mit­ted that he had fur­ther dis­tri­bu­ted the CD after beco­ming awa­re of it.

Fur­ther­mo­re, the defen­dant could not be held lia­ble as a “Stoe­rer” (inter­fe­rer). In the pre­sent case, the­re had been a war­ning-like first noti­ce of the inf­rin­ge­ment, the cos­ts of which are to be bor­ne by the cre­di­tor hims­elf, sin­ce the­re was no inter­fe­ring pro­per­ty, sin­ce the alle­ged “inter­fe­rer” only beca­me awa­re of a pos­si­ble inf­rin­ge­ment lia­bi­li­ty with the war­ning-like first noti­ce. The cos­ts for the first let­ter simi­lar to a war­ning let­ter would then have to be bor­ne by the par­ty brin­ging the action.

The defen­dant was also not obli­ga­ted to cea­se and desist as a trou­ble­ma­ker. This pre­sup­po­ses the exis­tence of test­ing obli­ga­ti­ons. The scope of this is deter­mi­ned by whe­ther and to what ext­ent the per­son clai­med to be the inter­fe­rer can be expec­ted to car­ry out an exami­na­ti­on under the cir­cum­s­tances. The court denied a duty of inspec­tion in this respect on the grounds that this could not be expec­ted of an online trader. It is reasonable to expect him to check whe­ther fur­ther inf­rin­ge­ments are cau­sed by his actions when he beco­mes awa­re of inf­rin­ge­ments. The court cor­rect­ly sta­tes that the defen­dant can­not be expec­ted to lis­ten to all CDs (dis­tri­bu­ti­on of more than 2,000 CDs) or to check their text wit­hout having con­cre­te know­ledge of a rights inf­rin­ge­ment. The defen­dant (on his own) would alre­a­dy reach his limits in terms of time.

In addi­ti­on, the defen­dant (as a legal lay­man) would have to make a legal assess­ment, which the plain­ti­ff par­ty had also cla­ri­fied in court with the rap­pers in ano­ther pro­cee­ding in a non-con­tro­ver­si­al man­ner, wher­eby in this respect it also came to weig­hing various fun­da­men­tal rights (inclu­ding gene­ral per­so­nal rights, artis­tic free­dom).

The defen­dant could also not know whe­ther the­re might not even have been a con­sent to the plain­ti­ffs or an approach with the rap­pers. He could not have any know­ledge of such cir­cum­s­tances.

The defen­dant could not be expec­ted to exami­ne every CD or title dis­tri­bu­ted by it for any inf­rin­ging con­tent, espe­ci­al­ly if it is to be held lia­ble as a “Stoe­rer” (inter­fe­rer). This would jeo­par­di­ze its busi­ness model becau­se of the immense expen­se invol­ved.

The strict lia­bi­li­ty to cea­se and desist would have the con­se­quence that dea­lers would be expo­sed in an incal­culable man­ner to the risk of war­ning let­ters due to alle­ged inf­rin­ge­ments of per­so­na­li­ty rights and fur­ther inf­rin­ge­ments from other rights and the asso­cia­ted cost bur­den, which could not be reason­ab­ly limi­t­ed by an exami­na­ti­on of the CDs offe­red due to the immense effort invol­ved and could the­r­e­fo­re call into ques­ti­on the busi­ness model of the wide-ran­ging offer of CDs and gene­ral­ly audio works of any kind. In this respect, the Munich Local Court appli­es the prin­ci­ples of the Munich Regio­nal Court to online music retail­ers accor­din­gly. A “Stoe­rer­haf­tung” (Breach of Duty of Care) befo­re know­ledge is not appro­pria­te in such cases.

This would also not lea­ve tho­se affec­ted unpro­tec­ted. Rather, they could, as also done by the preli­mi­na­ry injunc­tion befo­re the Munich I Regio­nal Court, turn against the music label or, howe­ver, also against the artist/rapper.

Future sales acti­vi­ties are pre­cluded by the fact that the defen­dant is sub­ject to inspec­tion obli­ga­ti­ons from the time it beco­mes awa­re of them and is lia­ble as a deb­tor to cea­se and desist in the event of non-com­pli­ance.

The cos­ts incur­red by the plain­ti­ff for a first noti­ce simi­lar to a war­ning noti­ce were the sole sub­ject mat­ter of the dis­pu­te in the pre­sent case. The action was the­r­e­fo­re to be dis­missed.

The plain­ti­ffs’ appeal befo­re the Munich Regio­nal Court was ulti­m­ate­ly with­drawn on the court’s advice.

If you, as a dea­ler, have been cal­led upon in simi­lar cases and need legal assis­tance, plea­se cont­act us.
Reh­katsch Rechts­an­wäl­te: +49-(0)221–4201074. We will be hap­py to help you.

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