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On November 26, 2015, the German Federal Court of Justice ruled in two separate cases on the liability of access providers for the copyright infringements of third parties. Accordingly, access providers can in principle be required by rights holders to prevent access to websites with copyright infringements.
The procedures
The first case involved a claim by GEMA against a telecommunications company for an injunction against making the website “3dl.am” accessible(Case No.: BGH I ZR 3/14). On this page, links and URLs were allegedly made accessible, which in turn led to pages where copyrighted musical works could be downloaded. GEMA considered this to be an infringement of its perceived copyrights.
In the second case, record producers brought an action against the operator of a telecommunications network that provided access to the site “goldesel.to”(Case No.: BGH I ZR 174/14). Links and URLs leading to pages with copyrighted musical works could also be accessed via this website. Here, too, an action was brought for an injunction to make the “goldesel.to” website accessible and thus to enable copyright infringements by third parties. The phonogram producers considered this to be an infringement of their copyrights under Section 85 of the Copyright Act.
Both proceedings were dismissed by the regional courts and higher regional courts of the previous instances. In the appeal proceedings, the Federal Court of Justice has now also dismissed both cases.
The legal situation
In principle, a telecommunications procedure can be claimed by the rights holders for injunctive relief. This results from an interpretation of German law in conformity with European law pursuant to Article 8(3) of Directive 2001/29/EC on copyright in the information society. The telecommunications company is liable as a “Stoerer” (Breach of Duty of Care) because the provision of access to the websites with infringing content constitutes an adequate and causal contribution to the infringements. However, before making a claim against the access provider, the rights holder must first attempt to take action against the parties closer to the infringement, in this case the website operator or the host provider. For this purpose, it is not sufficient, as in the present cases, to issue injunction requests to the host providers and website operators if they do not comply or the addresses cannot be found out. The rights holder must also take reasonable measures to investigate the matter, such as hiring a detective agency, a company specializing in the investigation of illegal offers on the Internet, or even involving state investigative authorities. Only if these measures are unsuccessful or completely futile may the access provider be called upon. In addition, the various fundamental rights of Internet users, namely freedom of information and informational self-determination, the fundamental rights of property protection of rights holders, and the professional freedom of telecommunications companies must be weighed against each other in the event of possible blocking. However, blocking is reasonable if, when viewed as a whole, the lawful content of a page does not outweigh the unlawful content.
Conclusion
In principle, a telecommunications company can thus be sued for blocking a website with copyright-infringing content. Before doing so, however, the rights holder must make a reasonable attempt to claim against the website operator or the host provider. In the case of possible blocking, the professional freedom of the telecommunications company, the property protection of the rights holders and the freedom of information of the Internet users must be weighed against each other. For this to happen, the illegal content of the site must substantially outweigh the lawful content. If the website is blocked in this way, it can only no longer be accessed by the access provider’s customers, but it still exists and can be accessed by others.
If you have any questions or need assistance with a copyright infringement dispute, please feel free to contact us by phone at 0221-4201074, by email at info@rehkatsch.de, or schedule an appointment with our copyright and media law firm in Cologne.