Clarification of the Conditions for Network Blocks in Copyright Infringements by the Federal Court of Justice
In its ruling of October 13, 2022 (case no.: I ZR 111/21), the Federal Court of Justice (BGH) set crucial parameters for interpreting the legality of so-called network blocks in copyright infringements. The decision brings significant clarifications in dealing with the blocking of websites through which copyright-infringing content is disseminated. At the heart of the decision is the interplay between the protection of intellectual property and the rights of internet service providers and their customers.
Starting Point: Claim for Network Block under § 7 para. 4 TMG old version
Legal Principles and Previous Developments
The copyright protection against online infringements has been intensely debated for years. With the establishment of liability for interference and the introduction of specific blocking claims, effective mechanisms are to be created against the massive unauthorized use of protected works over the internet. Under German law, in the event of repeated copyright infringements – after exhausting primary legal remedies – a blocking claim required by EU law against access providers may be considered.
Facts of the Case
In the underlying case, a collecting society requested an internet access provider to block access to certain websites. These sites facilitated the illegal public performance of copyrighted music works, whose use was not licensed by the collecting society. After identifying those responsible and unsuccessful claims against the infringers and host providers, the collecting society demanded the access provider implement a network block.
BGH Standards for Network Blocks
Subsidiarity and Proportionality as Key Guidelines
The BGH emphasizes the subsidiarity of the blocking claim in relation to other measures. The starting point is that claims should primarily be asserted against directly involved infringers and host providers. Only if these measures fail or seem unreasonable can a block at the access provider level be considered. Additionally, network blocks must be suitable to prevent the infringement and reasonable for both the provider and its users. Possible circumvention and collateral damage must also be taken into account in the assessment.
Reasonableness of Involving Third Parties
In the present legal dispute, the question was under what circumstances involving hosting providers is considered “reasonable.” The BGH clarifies that reasonableness is lacking if a host provider is located abroad and is either unreachable or legal action there appears practically hopeless. It is not sufficient to assume successful claims as soon as a contact form is available. Rather, it must be demonstrated that the attempt to legally compel the host provider to cease and desist is likely to be unsuccessful. Only in these cases can the measure against the access provider be the last resort.
Burden of Proof and Procedural Requirements
The plaintiff must specifically demonstrate the extent to which all other enforcement possibilities have been exhausted. Otherwise, the blocking claim against the access provider does not exist. The BGH makes it clear that strict requirements are to be placed on the burden of explanation and evidence to adequately protect the rights of access providers and their users.
Impact on Companies and Access Providers
Increased Legal Certainty Through Defined Examination Steps
The decision significantly increases legal certainty in the area of tension between copyright holders, intermediaries, and end-users. Companies in the entertainment industry and rights holders receive a clearly structured framework for the judicial enforcement of blocking claims. At the same time, the decision protects internet providers from hasty block requests and upholds the interests of the public, such as freedom of expression and information.
Significance for Practice and Ongoing Legal Developments
These principles must also be considered in the context of current EU legal acts, such as the DSM Directive and its national implementation. It also remains open to what extent technological developments – such as in the area of DNS-over-HTTPS or effective circumvention technologies – will influence the practical use of network blocks. The practical enforceability of judicial orders remains under observation.
Conclusion and Outlook
The decision of the Federal Court of Justice creates a precise framework for the enforcement of network blocks in cases of copyright violations on the internet. It contributes to maintaining the balance between the effective protection of intellectual property and the protection of communication freedom in the digital society. Given ongoing technical and legal changes, it is advisable to follow developments closely and seek well-founded expert support if necessary. For further questions regarding the legal implications of network blocks, claim enforcement, or defense against corresponding claims, MTR Legal Attorneys is available for personal consultation:Legal Advice on Copyright Law.
