David Kastrup wrote: [...] > So why are there numerous court decisions that "deep linking" of web > site material constitutes copyright infringement?
-------- Deep Linking: Legal Certainty in Germany While Debate Continues in the United States September 11, 2003 With a recent decision, the German Federal Court of Justice (BGH) (decision of July 17, 2003, file no. I ZR 259/00) finally resolved the controversy about the lawfulness of deep linking under German law. Previously, some German courts considered such practice to be lawful and others did not (see our Internet Alert of October 3, 2002). The courts which rejected this practice considered deep linking to be a violation of the data base rights of the website owner according to Section 87 b German Copyright Act (UrhG), which implemented the provisions of Directive 96/9/EC, the so-called Directive on the Legal Protection of Databases. In the BGH case, the plaintiff, which publishes the newspaper "Handelsblatt," the magazine "DMEuro" and online versions of those publications, sued the Internet search engine paperboy.de, which analyzes a broad range of newspaper articles and provides deep links to those articles. The plaintiff took the view that paperboy's deep linking violated its copyrights in the articles and its database, and also violated Section 1 of the German Act against Unfair Competition (UWG). The Higher Regional Court Cologne dismissed the plaintiff's claim, and with its recent decision the BGH has now dismissed a further appeal by the plaintiff. According to the BGH, hyperlinking is not a use that can be reserved to the copyright or data-bank owner. Such linking is not unlawful, even if it enables the user to directly access a work product through a deep link. An owner who provides public access to a copyrighted work product on the Internet already facilitates its use by any Internet user. Even without a deep link, a user could directly get to the publicly accessible work product or data with the appropriate URL address. Thus, the deep link is just facilitating such access. In addition, the BGH did not consider deep linking to be an unlawful exploitation of the work of the plaintiff (Section 1 UWG). Users were not misled about the origin of the newspaper and magazine articles. The fact that the owner of the Internet site may lose some advertising revenues (because the user bypasses the home page and other pages) did not create a violation of Section 1 UWG. Without deep linking, the BGH believed that it would be practically impossible to make sensible use of the overwhelming amount of information on the Internet. The BGH has not opined about situations in which a deep link bypasses technical protection measures intended to limit access information. However, with the exception of these issues and other particular circumstances, deep linking is now considered to be lawful under German law. ------ > David Kastrup, Kriemhildstr. 15, 44793 Bochum GNU Republic or Germany, dak? regards, alexander. _______________________________________________ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
