LG Hamburg; 2020-07-14; 310 O 339/18
Decision by national courts in the field of European Union law — ECLI:DE:LGHH:2020:0714.310O339.18.00
Date: 2020-07-14
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82020DE0714(51)_ENG_SUMJURE
JURE summary
JURE summary
A leading phonogram producer (hereinafter the ‘plaintiff’) filed an action against the operator of a shared hosting service domiciled in Switzerland (hereinafter the ‘defendant’) seeking compensation.
The plaintiff was the owner of exploitation rights to many different music labels. The defendant offered storage space for uploading files of any content. The defendant offered 3 different types of accounts with the service being free of charge or fee-based depending on the upload/download possibilities and the speed. Through automatically generated links, the files were also accessible for other users of the service and third parties. Any violation of copyright on the part of the users was prohibited by a provision in the General Terms and Conditions.
As the plaintiff found out, its copyright had been breached several times by the users of the platform. The plaintiff could state concrete URL addresses. Upon the request of the plaintiff, the defendant deleted the respective files. However, the defendant did not block the 13 accounts which were responsible for repeated uploads and were using the platform in a fee-based manner.
The plaintiff claimed that the defendant had not met its obligations sufficiently and the reason for not blocking the accounts of the frequented wrongdoers was a deliberate decision of the defendant’s management. The management tried to make use of the effect of letting the users upload content that was economically interesting but unlawful to increase the attractivity of their service.
The defendant applied for the action to be dismissed stating that it was a mere host provider that did not offer any own content. In addition, the defendant did not offer any kind of register or a search function. It was the users who were responsible for making the content publicly available.
The Landgericht Hamburg (hereinafter ‘the Court of First Instance’) held both international and local jurisdiction under Article 5(3) of the new Lugano Convention (1).
The action was found justified. The plaintiff was entitled to receive compensation for the breach of the copyright on the part of the defendant as it was the defendant who unlawfully allowed the content to be made public (2) or publicly communicated (3).
The behaviour of the defendant was to be considered as a communication to the public within the meaning of Article 2(1) of the Directive 2001/29/EC (4). The defendant could not rely on the exclusion of liability under Article 14(1) of the Directive 2000/31/EC (5).
The Court of First Instance ordered the defendant to pay the plaintiff a compensation of EUR 1.3 million including interest.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Article 15(2)(1)and(2)(2), Article 19(a) of the Gesetz vom 9. September 1965 über Urheberrecht und verwandte Schutzrechte (Urheberrechtsgesetz). (German Copyright Act of 9 September 1965).
(3) Article 15(2)(1), Article 19a of the Urheberrechtsgesetz. (German Copyright Act of 9 September 1965).
(4) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
(5) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce').