German appeals court outlaws links to websites offering circumvention technology

A Munich court of appeal upheld a lower court ruling, demanding that German IT news service Heise Online remove a link to Slysoft.com, an Antigua based company selling software enabling users to make copies of copy-protected CDs and DVDs. Legal experts criticised the decision as endangering press freedom.

Six major labels in January served a writ to Heise, preventing it from publishing links to Slysoft. In April, a lower court in Munich held (PDF, 5.3 MB) that Heise was allowed to report on Slysoft’s software but not to link to the company’s web page, even though the link was referring to the homepage only, not the download page.

By providing a link to the company's homepage, the court said, Heise intentionally provided "assistance in the fulfilment of unlawful acts" and is therefore liable as "an aider and abettor". The case is based on article 95a of the German authors rights code, resembling the infamous section 1201 of the US DMCA, prohibiting the circumvention of copy protection measures. It outlaws the manufacture, import, sale, renting, and promotion with regard to sale or renting of applications to circumvent copy protection measures. Also prohibited is the possession of these applications when they are used for commercial purposes, and to perform services in order to circumvent or promote circumvention.

The music companies had argued that Heise had in its article advertised circumvention technology and provided instructions to circumvent protection measures. Heise had explicitly stated in the article that the software in question was illegal in Germany. The court dismissed this part of the music industry’s accusations but upheld that the link to Slysoft’s website was not covered by the freedom of the press. Instead, the court found it a "vulgarisation of press custom" that had to be countered.

The ruling was on July 28 upheld by the appeals court in Munich (Oberlandesgericht München). There is no further way to appeal it. Heise or the music companies could both challenge the decision only by going back to the first instance and initiate a principle action, which could then go up to the High Court (Bundegerichtshof). The legal proceedings would take up to four years before a decision would be reached.

Christian Persson, Heise Online’s editor in chief, said "it has to be taken for granted that in online reporting it is legal to provide a link to a company’s web site". The High Court had ruled in 2004 that links are a "fundamental component of online journalism". They could only be seen as breach of law in case journalists "ignore blatant evidence that they are unlawful".

Thomas Dreier, professor of law at Karlsruhe University and commentator of the German authors rights code, said that a link alone does not indicate the intent to promote or embrace an offering. On the contrary, he said, "it is essential to press freedom in the sense of the Internet to provide links and it cannot be the case that journalists are prevented from comprehensive reporting on unlawful actions or offerings."

Thomas Hoeren, professor of law at the University of Muenster and former member of the EU commission’s Task Force Group on Intellectual Property had called the lower court ruling, which was now affirmed, "shocking". He said that the court had "misconceived the scope of press freedom."

In mid-July, before the ruling was handed down in the Heise case, the music industry had started sending out cease and desist letters to web sites that provided links to Russian music download service AllofMP3.com. The same Munich court that heard the Heise case decided that the Russian service was illegal in Germany. Public broadcaster SWR, computer magazine Chip, Heise Online and others consequently removed links to AllofMP3.com. Chip’s legal counsel, Roman Miserre, said that the publishing house will take legal action against the order in case Heise would loose its case regarding the Slysoft link. Since then, no further announcements have been made.

Posted by Matthias Spielkamp at 09.08.05 10:48

Funny part is ... considering the garbage that comes out of Hollywood who would want to copy this? Same is true with popular music. Why bother?


Posted by: Werner Scott at 10.08.05 15:05

They might still appeal to the German Constitutional Court. Obviously this case raises some concern under Article 5 of the German Constitution.

As to the substance, I don't see much point in allowing people to say "Slysoft.com" but not "http://sly...." (slightly edited to avoid exposing your blog to similar charges).

While in the past I thought this kind of decision should be criticised because it makes running a search engine impossible, now I rather think there is no problem with shutting search engines down.

But, from an Article 5 point of view, making it impossible to report about any illegal page because you might be seen as abetting them is a rather large restriction.

Maybe the new "nofollow" tag might help somewhat to keep the enemies of freedom in check. People could link with that tag to make sure their link is not understood as endorsement.

Posted by: Karl-Friedrich Lenz at 13.08.05 06:00