Report on the IMKR Lecture “Liability of eBay, Facebook, Google, and Others for Copyright Infringements on the Internet” by Attorney Dr. Verweyen
On February 8, 2017, Prof. Rösler welcomed attorney Dr. Urs Verweyen, Attorney-at-Law (NY), LL.M. (NYU). He is a founding partner of KVLEGAL, a Berlin-based law firm specializing in copyright and intellectual property law. Dr. Verweyen illustrated various liability models for operators of internet platforms – so-called intermediaries – in the digital age, drawing on relevant European and German court decisions that have shaped legal practice in recent years but have recently been fundamentally called into question.
Dr. Verweyen began by presenting the general concept of interferer liability (Störerhaftung). He noted that, in cases of legal violations on the Internet, the actual perpetrators are often untraceable, which creates an incentive for injured parties to hold the intermediaries liable instead and to oblige them to prevent future infringements through the use of filters. In one of the first decisions on this matter, the Federal Court of Justice (BGH) (BGHZ 158, 236 = NJW 2004, 3102 – Internetversteigerung I) ruled that platforms generally do not act intentionally and are therefore neither perpetrators nor participants in a legal violation. In the same ruling, however, the BGH held that providers, as interferers (Störer), can be required to remove infringing content and refrain from future infringement if reasonable control measures exist that would prevent the infringement. According to this and subsequent rulings, once a provider becomes aware of a specific infringement, it must put a stop to it (in this specific case: delete the online content) and take technically feasible and reasonable measures to prevent similar infringements in the future. However, it is generally not reasonable to expect providers to review every piece of content uploaded directly via an automated process in advance for potential infringements.
In the second part of his presentation, Dr. Verweyen explained the developments regarding liability for links. In the landmark decisions of the Federal Court of Justice (BGHZ 156, 1 = NJW 2003, 3406 – Paperboy, and NJW 2011, 769 – Session-ID) and the European Court of Justice (ECJ) (NJW 2014, 759 – Svensson, and NJW 2015, 148 – Framing), it is held that, in principle, neither reproduction nor making content publicly available occurs in the case of hyperlinks or framing. Only if a link is created that circumvents technical protection measures, such as “paywalls,” can a communication to the public be assumed, since the content is now made publicly available to a broader – or, in some cases, new – audience.
In the context of linking, the question arises as to whether and how search engines are liable for their search results. In two Federal Court of Justice (BGH) decisions (GRUR 2010, 628 – Vorschaubilder I, and GRUR 2012, 602 – Vorschaubilder II), at least with regard to image search engines, simple consent was assumed for the first time in this regard if the rights holder made images available “freely” on the Internet without appropriate protective measures. It does not matter whether the thumbnail refers to a legal or illegal publication. Rather, the only relevant factor is whether any publication of this image on the internet is legal.
With the ECJ ruling of September 8, 2016 (NJW 2016, 3149 – GS Media), the Court, contrary to the Advocate General’s recommendation, reversed its earlier case law regarding simple linking: In the future, it must be considered whether the platform operator knew or should have known of the unlawfulness of the publication of the work. Thus, the link would constitute a copyright-relevant act. The presumption of “should have known” should apply in cases involving commercial activity.
Dr. Verweyen assessed this generally unexpected development in the law as creating significant legal uncertainty in practice, which could mean that the doctrine of liability for intermediaries developed over the past 15 years has now come to an end. It is also unclear whether a license must be obtained simply by placing a link. Dr. Verweyen pointed out the uncertainty among search engine operators as to whether they, too, must henceforth verify the legality of content in advance. Based on his experience as a legal advisor, Dr. Verweyen views these and other questions as precarious sources of legal uncertainty.
