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Tuesday, 21 February 2012

German Constitutional Court confirms BGH's 'AnyDVD' copyright decision

In October 2010, the Bundesgerichtshof ("BGH"), Germany's highest court in civil law matters, decided in the 'AnyDVD' case (case reference I ZR 191/08) a lawsuit brought by several music companies against Heise Verlag, an online publisher specializing in IT and computer news (see the IPKat's earlier report here).

The music companies took objection to reports published on Heise’s website which included links to a third party website ("SlySoft") that offered software that allowed circumventing copy protection for DVDs. While the lower courts, the Regional and Higher Courts of Munich I, had held that Heise's online reports were itself copyright infringing, the BGH took the view that adding the links on Heise's website which linked to SlySoft's website -- where SlySoft offered copyright right infringing software -- was covered by the constitutional right of freedom of press and freedom of opinion under Article 5(1) German Constitution. By way of further background: the 'AnyDVD' decision is, inter alia, based on Article 95 a German Copyright Act which is based on Article 6 of the Copyright Directive (Directive 2001/29/EC) (“Obligations as to technological measures”).

On further appeal, the Bundesverfassungsgericht (German Federal Constitutional Court), Germany's highest court, has now confirmed the BGH's decision (case reference: 1 BvR 1248/11 of 15 December 2011, full German text here) and agreed with the lower court's balancing of Intellectual Property Rights and freedom of press and freedom of opinion. In summary: placing a link to a third party website on one's own website "could not only be interpreted as a mere technical service and thus in isolation, but was due to its character of providing information" also covered by the constitutional guarantees of freedom of press and freedom of opinion. The Bundesverfassungsgericht thus agreed with the BGH, which had held that purpose of the links on Heise's website was not only to technically facilitate to access the SlySoft's website but the links were to be regarded as part of Heise's reporting because they were complementing and 'backing up' what was reported with additional information. The BGH had also held that the fact that Heise was aware that the software offered on SlySoft's website was copyright infringing did not change this and so could not be blamed on Heise since the information interest of the general public was of higher importance.

In its appeal decision Bundesverfassungsgericht stressed that by placing the link to SlySoft's website on its own website, Heise did not automatically make the content of SlySoft's website its own opinion. Finally, the Bundesverfassungsgericht poined out that the BGH had correctly balanced the conflicting rights when it had found that Heise's placing of the link did not further encroach ("no deepening of the encroachment") in the claimant's copyrights since SlySoft's website could very easily be found via an Internet search engine anyway.

A rather complex decision - neatly argued by the court in only 38 paragraphs. No further appeal is possible (within the German court hierarchy....).

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