BGH; 2022-06-02; I ZR 135/18
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2022:020622UIZR135.18.0
Date: 2022-06-02
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82022DE0602(53)_ENG_SUMJURE
JURE summary
JURE summary
A record company and owner of the exclusive usage rights to music labels of the band ‘Guano Apes’ and the singer ‘Miley Cyrus’ (hereinafter ‘the plaintiff’) filed an action against the operator of the share-hosting service ‘uploaded’ (hereinafter ‘the defendant’) claiming a breach of its obligations to delete and block content, the breach of the examination duty and further claiming the reimbursement of the costs of the warning.
The defendant offers free storage space for anyone to upload data with any content. The defendant creates a download link to every uploaded file which it sends to the user. The users can place such download links in collections of links operated by third parties, thus enabling other users to access the files stored on the servers of the defendant. Under the general terms and conditions of use, it is forbidden for the users to violate any copyrights of others.
The company proMedia GmbH commissioned by the plaintiff found in the collection of links download links to the works of the aforementioned artists and requested the defendant to block the respective files immediately.
The Landgericht Hamburg (hereinafter ‘the Court of First Instance’) as the court seised under Article 5(3) of the new Lugano Convention (1) upheld the cease-and-desist request in the form of a partial judgment and ordered the defendant under the threat of a penalty to immediately delete and block the download links and to reimburse the costs of the warning.
Based on an appeal of the defendant, the Oberlandesgericht Hamburg (hereinafter ‘the Court of Appeal’) dismissed the prayers of relief concerning the breach of the examination duty and the reimbursement of the costs of the warning. The defendant was notified of the infringement of rights and obliged to prevent such infringement as of that moment. The application, however, failed to prove that the defendant did not meet its duty of care after having been notified and such failure was the reason for a further infringement of rights or that there was a concrete risk thereof.
The revision filed by the plaintiff with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was successful.
According to the Supreme Court, the Court of Appeal was not correct when it dismissed the cease-and-desists request which relied on the content having been made publicly available illegally under Article 85(1)(1)(3) and Article 19a of the UhrG (2). The public nature of the communication was evident as the download links were available to an indefinite number of potential recipients, and the works could be accessed by a number of people at the same time or one after another. The defendant used a technical procedure that made a protected work available to a new audience which was not intended by the owner of the copyright. Despite the fact that the defendant knew or was supposed to know that contents violating rights of others were accessible on its platform, the defendant failed to take appropriate technical measures to effectively and plausibly deal with the copyright infringement.
The Supreme Court annulled the decision of the Court of Appeal to the extent that was to the detriment of the plaintiff. To that extent, the Supreme Court referred the case back to the Court of Appeal for a new hearing and decision.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Urheberrechtsgesetz (Act on Copyright and Related Rights).