Another German Determination Warns Against Wide Application Of Gs Media Presumption For For-Profit Link Providers

By  Eleonora Rosati 

           Visual map on linking after GS Media, available here

A few days agone this blog reported on a recent here] – questioned or, at least, proposed a restrictive important in addition to application of the recent decisions of the Court of Justice of the European Union (CJEU) on the correct of communication to the populace in addition to linking to protected content nether Article 3(1) of the InfoSoc Directive.

It appears, inward particular, that it is the CJEU structure of prima facie liability for unauthorized linking every bit flora in GS Media [Katposts here] – notably the presumption of noesis applied to link providers amongst a profit-making intention (see my tabular array on the correct manus side) – to confront resistance.

Thanks to a dyad of High German Katfriends, I direct keep been made aware that at that spot is a 3rd recent determination that also shows an approach to linking in addition to the GS Media presumption which is maybe dissimilar from the i envisaged past times the CJEU.

It is i time once to a greater extent than a judgment (310 O 117/17) [also commented here] of the Regional Court of Hamburg, i time once to a greater extent than involving pug domestic dog Loulou.

The novel Hamburg decision

In a nutshell, inward this illustration the Hamburg courtroom held that at that spot is no deed of communication to the populace within §§ 15(2) UrhG and 19a UrhG if a mortal who links to protected content without the relevant rightholder’s permission is unaware that such content is unlawful. 

In particular, fifty-fifty if the link provider has a profit-making intention, at that spot should last no presumption that he had awareness that the content linked to was unlawful if he operates inward a context inward which it would last unreasonable to facial expression that checks are performed to ensure that the content linked to is (and remains) lawful.

In the illustration at issue, the defendant’s linking activities were performed algorithmically and, similarly to the other Hamburg decision, also inward this illustration the infringing content linked to was available on Amazon.de.

Loulou

The accused had no actual awareness that the content linked to was unlawful, nor was its unlawful nature recognizable. Influenza A virus subtype H5N1 relevant aspect was also the fact that, to last able to offering products for sale on Amazon, merchants direct keep to deal to the platform’s damage of use, including declaring that they ain the copyright to the images displayed.

Scaling down GS Media

According to the court [para 67], the GS Media presumption of noesis cannot last considered every bit indistinctly applicable: instead, it should last alone relevant inward situations inward which the link provider/defendant tin be expected to ship out the necessary checks to decide the condition – lawful or unlawful – of the content linked to.

Paragraph 68 of the determination contains a right away scaling downward of the CJEU approach in GS Media. 

The High German courtroom acknowledged that [at para 51] the CJEU seemingly mandated a to a greater extent than oft than non applicable presumption for links posted out of profit. However, a conclusion of this form would contradict what is stated at paragraph 34 of GS Media itself, ie that the assessment of whether a link provider tin last liable nether Article 3(1) of the InfoSoc Directive must last individualized in addition to accept concern human relationship of several complementary criteria that “may, inward dissimilar situations, last acquaint to widely varying degrees”.

Loulou's
unauthorized
telephone case

According to the court, inward the illustration at number it would last “unreasonable” in addition to “economically unjustifiable” to facial expression that the accused carries out such checks inward relation to each in addition to every content (automatically) linked to, including content hosted on a platform similar Amazon.

The defendant’s concern model – including the fact that the content is non ‘incorporated’ to facial expression every bit the defendant’s ain content - is such that no specific searches for unlawfulness tin last expected. Holding otherwise would non alone last unreasonable, but also amount to an undue compression of the telephone commutation liberty to comport a business, pursuant to Article xvi of the EU Charter of Fundamental Rights.

Conclusion

This is the 3rd determination inward a brusque timeframe that proposes a 'minimalist' reading of the GS Media presumption for for-profit link providers. 

In these cases the High German courts, instead of belongings the presumption rebutted inward the specific illustration considered (as it appears - or rather appeared? - to last the approach in GS Media), held against its applicability tout court, on grounds of reasonableness and past times placing important emphasis on the telephone commutation rights dimension. 

From the reading of these judgments, the fearfulness that the human relationship betwixt copyright protection in addition to liberty to comport a concern mightiness last also unbalanced inward favour of the one-time is acutely felt. This - together amongst considerations relating to the proper structure of the correct of communication to the public, including the requirement of an individualized assessment - arguably supported the resulting outcome. 

https://everythingarticlesaddict.blogspot.com//search?q=