27 November 2015

Germany: ISPs may be liable for third party copyright infringements

Germany’s Federal Court of Justice (Bundesgerichtshof - the “BGH”) ruled on 26 November 2015 that an Internet Service Provider (“ISP”) may be liable for copyright infringements by third parties and thus may be obliged to block websites containing the infringing material. However the court also made clear that the relevant copyright owners first have to take action against the parties which are more involved in the infringing acts, e.g. the website operator or the host provider, their claim against the ISP has no merit otherwise. The question of ISPs’ liability has been highly controversial in the past. The BGH’s decision finally brings clarity to a key issue in the field of prosecution of copyright infringements.

The BGH’s decision arose from two very similar cases brought before it: One of the lawsuits was filed by the Society for Musical Performance and Mechanical Copying Rights (“GEMA” - Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte) against an ISP. GEMA demanded the ISP to block an internet site through which a collection of copyright protected music could be accessed. The lower court, the Higher Regional Court of Hamburg, had dismissed the case and GEMA then appealed this decision. The other lawsuit was filed by several recording companies against another ISP, demanding it to block a website which contained hyperlinks to copyright infringing material. The Higher Regional Court of Cologne dismissed the case as well. The plaintiffs argued that the mere provision of internet services contributes to the copyright infringement by the website operators as it is a necessary requirement for the websites to be accessed.

The BGH agreed. ISPs indeed play a part in internet copyright infringements since without their technical infrastructure internet users could not access the websites which contain the infringing material in the first place. It was also held that ISPs could reasonably be requested to block the websites regardless of the technical and financial effort that comes with that task. This had been the main reason why the lower courts had dismissed these cases.

However the BGH pointed out that ISPs only become liable for copyright infringements as soon as legal steps against the parties which are more involved in the infringing acts, e.g. the website operator or the host provider, have been unsuccessful or do not have any merit from the start. This is in order to avoid the situation where copyright owners have no one to take action against if they cannot successfully prosecute the website owners or host providers.

Comment:

The ruling is very welcome as it considers the concerns of both sides. The ISPs are not generally liable for third party copyright infringements, but are liable if other legal steps taken by the copyright owners are unsuccessful. At the same time, the copyright owners no longer have to come-away empty handed if their attempts to prosecute the parties which are more involved in the infringing acts have no merits.

Source: Press release on Germany's Federal Court of Justice ruling from November 26th, 2015.



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