Germany's highest court has ruled that bypassing the home pages
of websites and linking directly to their content does not violate
copyright and competition laws.
The long-awaited decision by the German Federal Supreme Court in
favour of online search engine Paperboy on July 17 sets a precedent
that confirms the legality of deep linking in Germany.
The decision in the case of publishing company Holtzbrinck
against Paperboy is a victory for deep linking sites in Germany,
such as Paperboy and NewsClub, which have been threatened with
closure because of anti-deep linking rulings elsewhere in Europe,
such as Denmark and the Netherlands.
"A sensible use of the immense wealth of information offered by
the world wide web is practically impossible without drawing on the
search engines and their hyperlink services (especially deep
links)," the Court said in a statement. It added that a search
engine's use of hyperlinks cannot be condemned as long as it leads
the user to the copyright owner's original website.
"The decision has eliminated previous doubts over whether deep
linking would violate other websites' business models, or would
deprive them of their earnings by bypassing their
advertisement-laden homepages, or would even infringe copyright
laws," said Peter Chrocziel, partner in the Frankfurt office of
Freshfields Bruckhaus Deringer, and joint head of its global
intellectual property and information technology practice.
Publishing group Holtzbrinck, owner of financial newspaper
Handelsblatt, brought the suit against Paperboy for
directly linking to stories on its websites. Claiming the practice
would infringe its copyright, Holtzbrinck also accused Paperboy of
unfair competition for bypassing its advertisement-heavy
homepages.
A lower court ruled in favour of Holtzbrinck, but the decision
was overturned by an appeals court and has now been confirmed by
the Supreme Court.
The Court found against Holtzbrinck's claims because the
copyright owner had made its work publicly available by putting it
on the internet without technical protection measures. Though the
company may have lost some revenue, the Court said Holtzbrinck
could not prevent users from taking the much quicker and easier
route through the internet via hyperlinks.
Chrocziel described the Court's decision as very progressive and
more liberal compared to more stringent, previous decisions on deep
linking in other European countries.
While Paperpoy announced it will soon re-launch its deep linking
service, Danish news service Newsbooster had to remove its links to
28 Danish online news sources after a court decided in 2002 that
the practice infringed Danish copyright and database law.
German news engine NewsClub also had to remove its links to
online articles on the Mainpost website after a German
regional court decided the links infringed EU database and
copyright law, though that question of law has now been settled by
the Paperboy case.
Paperboy said on its website: "We are pleased with the Federal
Supreme Court's ruling and its guidance on the key question of
information and press freedom on the internet."
To view the Federal Court's release (in German), please
click here.
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