Pro­vi­der lia­bi­li­ty for third-par­ty inf­rin­ge­ments

Access Provider Third Party Liability - Rehkatsch Attorneys at LawOn 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.


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.

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