BGH; 2022-06-02; I ZR 53/17
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2022:020622UIZR53.17.0
Date: 2022-06-02
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82022DE0602(51)_ENG_SUMJURE
JURE summary
JURE summary
A publishing company of professional literature domiciled in the USA that owned exclusive usage rights to a number of medical encyclopaedias (hereinafter ‘the plaintiff’) filed an action against the operator of the share-hosting service ‘uploaded’ domiciled in Switzerland (hereinafter ‘the defendant’) claiming the violation of its usage rights to the encyclopaedias.
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. The defendant offers free-of-charge access as well as several paid accounts. Under the general terms and conditions of use, it is forbidden for the users to violate any copyrights of others.
The plaintiff found out that their encyclopaedias were accessible as files on the servers of the defendant. With its action, the plaintiff demanded that the defendant, as an offender or alternatively accessory of an offence or further alternatively as a copyright offender, be ordered to cease and desist from this conduct and to provide information, and further requested that the court acknowledge its right to receive compensation.
The international jurisdiction of the Landgericht München (hereinafter ‘the Court of First Instance’) as the court seised under Article 7(3) of the new Lugano Convention (1) was given, as the place where the damage occurred, i.e. the public disclosure or communication of protected intellectual property, was also in Germany as the defendant’s websites were accessible in Germany. The Court of First Instance issued a cease-and-desist order and dismissed the action as for the rest. Based on the appeal of both parties to the dispute, the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) modified the judgment of the Court of First Instance, ordering the defendant to cease and desist from the reprimanded conduct as a copyright offender and dismissed the action as for the rest.
The revision filed by the plaintiff with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was successful.
Regarding the topic of communication to the public, the Court of Justice of the European Union decided that operators of share-hosting platforms have a central role regarding possible content infringing rights of third parties. However, it is necessary to assess individually with regard to the specific context whether a communication to the public really occurred. That was the case within this dispute.
Despite the fact that the defendant knew or was supposed to know that contents violating the rights of others were accessible on its platform (2), the defendant failed to take appropriate technical measures to effectively and plausibly deal with the copyright infringement. There were many substantial indications that the defendant’s business model relied on the accessibility of content mostly violating the rights of third parties, encouraging users to share such content through the defendant’s platform.
The Supreme Court annulled the decision of the Court of Appeal and 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) The defendant’s website contained links to more than 9,500 works which were reported as having their copyright infringed.