Legal Research

German Supreme Court rules deep linking copyright infringement

By scott

Interesting decision [HT @glynmoody] by the German Supreme Court Bundesgerichtshof (BGH) on the issue of deep linking and copyright infringement.

From what I can ascertain from my rather poor understanding of German [happy to be corrected by anyone who does understand it better] The case involved the accessing of property maps by a housing company/Estate Agent. Via their site they deep linked to the relevant maps associated with properties they advertised for rent.

The issue was that the site who hosted the maps didn’t allow such deep linking to their maps without a licence. They offered commercial organsisations the ability to do this for a price, and also allowed members of the public to access content free via the website where a session ID would be created allowing restricted access.

What seem to have happened in this case is that the housing company wrote some code to create these session ID’s associated with their properties, thus bypassing the mapping sites homepage and avoiding paying a licence to access the data.

The Court, overturning a lower court, found this was clearly copyright infringement as the housing company had circumvented a saftey measure aimed at preventing/limiting access to its content. The court didn’t look at whether the technical measure employed by the site was effective or not (it clearly wasn’t) as it read to law to indicate that that didn’t matter ? unlike the lower court who had rules the effectiveness of the measures did matter.

All that mattered ruled the court was that measures had been taken to limit access and the housing company had been aware of this and had chosen to bypass these measures. This was enough to make the deep linking copyright infringement.

The court would have taken German copyright law into account in its decsion and its transposition of Artcle 6 of the EU Copyright Directive which states:

(1) Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.… (2) …

I usually have little time for these types of case which are often demonstations of lack of understanding ofhow the interet works either by the courts or by those bringing the cases. However, in this case, if the facts are as I understand them [and once again, I may have it totally wrong] I think the court probably got thisa one right. If the housing company knew of the existence of the commercial licence and chose not to take one out whilst then actively taking advantage of the free ‘public’ access route, it would seem clear they knew what they were doing, and their actions we little more than trying to avoid paying a licence.

Full post as published by Information Overload on November 15, 2010 (boomark / email).