Federal Court of Justice doesn’t Revoke Freedom-Related Decision

Some time ago, I have noted that almost all freedom-related supreme court decisions in Germany

[…] more or less read like: A wants to stop B from doing something. The LG and the OLG stay with A but the BGH finally confirms the freedom of B.

Today, it seems that an exception (I ZR 80/12) to this (undesirable, and – if accurate – frightening) rule was published [1].

In a lawsuit between the Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA) and the file hosting provider RapidShare the former acted as the plaintiff demanding the defendant to stop providing access to 4815 illegal copies of music recordings that have been uploaded by unidentified users to the servers of the defendant. The Federal Court of Justice of Germany (BGH) has confirmed the decisions of the Landgericht (LG) and Oberlandesgericht (OLG) Hamburg that obligated the defendant to cancel access to copies of the works enumerated by the plaintiff and take reasonable care that they won’t be uploaded again.

This decision is in line with

Advertisement

Recent Freedom-Related Supreme Court Decisions in Germany

In this post, I’d like to very briefly discuss a few freedom-related decisions by the Federal Court of Justice of Germany (BGH) and the Federal Constitutional Court of Germany (BVerfG) made during this year’s November and December for which I did not have time to publish more thorough discussions earlier. The decisions are ordered by the dates of their press releases (PR) which are sometimes substantially younger than the actual decisions.

European Court of Justice Could Enable Libraries Advancing Against DRM

An interesting lawsuit is currently going on between a German University’s library and a German publisher. The latter wishes to forbid the library digitizing its textbooks and instead force it to buy a licensing agreement for its e-books. The library had been scanning a printed book and provided access to it in PDF format via electronic terminals. Visitors were also allowed to print out the PDFs and even save them to their USB flash drives and take them with them.

The first court to deal with the matter decided that the library is allowed to digitize the books – even if the publisher disapproves of this and offers an alternative licensing agreement – but allowing visitors to take copies with them is not covered by the law. Both parties were appealing against the sentence. The Federal Court of Justice of Germany (BGH), who is now in charge of the lawsuit, has asked the European Court of Justice (ECJ) for an interpretation of the relevant directive and the outcome is totally open again. The ECJ’s decision will probably have an impact on many libraries all across Europe.

Illegal Copies of “Alone in the Dark” on RapidShare

Today, the Federal Court of Justice in Karlsruhe (BGH) has published a press release (BGH 114/2012) concerning its not yet published decision in the lawsuit between Atari Europe, Inc. and the RapidShare AG (Urteil des I. Zivilsenats vom 12.7.2012 – I ZR 18/11).

Atari has been suing RapidShare for providing disk space for distributing illegal copies of its video game “Alone in the Dark”. As with a number of previous lawsuits, the BGH has pointed out that there is no general obligation for RapidShare to unconditionally filter files uploaded by its users for potentially being illegal. However, RapidShare is obligated to do its best to prevent reoccurring of illegal uploads of the same file has it once been notified by the aggrieved person.