Liability of access providers for copyright infringements committed by third persons
23 Februar 2016
On 26 November 2015, the German Federal Supreme Court (BGH) handed down two judgments in which it ruled that companies which provide access to the Internet (so-called access providers) may in fact be liable without fault as “disturbers” (“Störerhaftung”; docket nos. I ZR 3/14 and I ZR 174/14). However, this only applies as ultima ratio in case the owner of the rights has first made all reasonable efforts to act against the involved persons that have committed the infringement themselves (such as the content provider) or have contributed to the infringement by rendering services (such as the host provider).
According to the Federal Supreme Court, the owner of the rights first has to make “obvious efforts” to clarify the identity and the accessibility of the infringer – e.g. by hiring a private investigator or some other company which conducts investigations relating to illegal offers on the Internet, or by informing the public investigative agencies. Only after such measures have failed and proceedings against the host provider have no prospect of success, it is admissible to sue the access provider, for otherwise the owner of rights would be denied effective legal protection. According to the Federal Supreme Court, in the underlying cases the plaintiffs had not conducted sufficient investigations, such that their appeals on legal groundes were dismissed.
The entire judgments can be downloaded here and here (in German language).