OLG Dresden; 2015-06-08; 14 W 312/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGDRES:2015:0608.14W312.15.0A
Date: 2015-06-08
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82015DE0608(51)_ENG_SUMJURE
JURE summary
JURE summary
A plaintiff domiciled in Germany (hereinafter ‘the plaintiff’) sought an injunction against the publication of a music album of an artist on the website of a share hosting provider based in Switzerland (hereinafter ‘the defendant’).
By making the album available to the public, copyrights in respect to the album had been infringed.
By order of the Landgericht Leipzig (hereinafter ‘the Court of First Instance’), the defendant was prohibited from making the disputed album available to third parties as a whole or in the form of the 20 separate sound recordings contained therein.
The defendant’s appeal to the Oberlandesgericht Dresden (hereinafter ‘the Court of Appeal’) is directed against that decision but is inadmissible.
The German courts have international jurisdiction under Article 5(3) of the new Lugano Convention (1). The criteria of Article 5(3) of the Brussels I Regulation (2) must be applied mutatis mutandis to interpret Article 5(3) of the new Lugano Convention, so that the place where the damage is sustained in the national territory is decisive.
The content of the defendant’s servers should automatically be subject of his awareness, making him responsible for it.
At the latest with the receipt of the lawyer’s warning letter, the defendant was not only obliged to block access to the album, but also to take precautions to prevent further similar legal infringements.
Once the defendant has been made aware of a clear infringement of rights in relation to specific works, he is obliged to examine this infringement when carrying out his commercial activities. He has violated this obligation by not blocking the account ID assigned to the specific user who has violated the copyright.
The defendant is liable as a disrupter because, after the warning and injunction, he did not do everything technically and economically reasonable to prevent further similar infringements on his servers.
The Court of Appeal dismissed the defendant’s appeal against the order of the Court of First Instance.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Verordnung (EG) Nr. 44/2001 des Rates vom 22. Dezember 2000 über die gerichtliche Zuständigkeit und die Anerkennung und Vollstreckung von Entscheidungen in Zivil- und Handelssachen.