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Blocking orders against access mediators to BitTorrent platforms


Blocking orders against access mediators to BitTorrent platforms

Österreichische Vereinigung für gewerblichen Rechtsschutz und Urheberrecht
2018, May 15


The Austrian Supreme Court examines whether and how copyright infringements can be prevented by BitTorrent platforms where no protected works are stored but whose files serve as a guide to copyrighted works.


1. The provision and operation of a BitTorrent platform for the purpose of online file sharing is a "public reproduction" reserved for the authors.

2. An injunctive relief under copyright law also exists against intermediaries who contribute to an infringement of rights on the Internet.

3. Although Sec 81 (1a) Austrian Copyright Act ("UrhG") acknowledges the liability privilege of Sec 13 et seq Austrian E-Commerce Act ("ECG"), an injunctive relief also exists in the privileged case when a warning preceded through which the intermediary was informed about the acts of infringement. According to Sec 19 ECG, claims to remedy infringements (including the right to cease and desist under Sec 81 UrhG) remain unaffected by the liability privilege.

4. Article 81 (1a) UrhG grants the infringed party a direct claim that is available irrespective of any legal proceedings brought against the direct infringer (no subsidiarity of the claim against the intermediary).

Facts of the case

BitTorrent (from Bit [smallest data unit] and torrent, from latin torrens) is a collaborative file sharing protocol, which is particularly suitable for the fast distribution of large amounts of data. Unlike other file sharing techniques, BitTorrent does not rely on a comprehensive file sharing network but builds a separate distribution network for each file. Files are not only distributed by a server, but also from user to user (peer-to-peer or P2P).

BitTorrent platforms themselves do not provide any copyrighted works, only a "torrent file". This file is a kind of guide containing all the necessary information about a (copyrighted) work (name, size, quality of the work, IP address of the user offering the desired file for download, etc). The torrents themselves are uploaded to the website by users (providers) in order to enable other users (customers or so-called "leeches") to find the providers. The user that is looking for a (copyrighted) work goes to the BitTorrent site first, where he searches for the "torrent" he wants and with this, and a program needed for download (a so-called BitTorrent client), he can then establish a connection to the provider who makes the work available. The actual data exchange therefore takes place without the BitTorrent page being interposed. The data is only exchanged directly between the supplier and the customer.

The task of the BitTorrent platform is to offer the "torrents" collected under a domain and to prepare them graphically in order to enable customers to find the respective providers who provide the work requested by the customer. From a technical point of view, BitTorrent pages are servers that index the "torrents" in order to enable customers to contact the desired provider. Similarly, BitTorrent platforms are a kind of marketplace with signposts that allow consumers to find products offered elsewhere (hidden), whereby the marketplace itself does not sell goods but only information.

The applicant is a collecting society. It exercises the rights of phonogram producers and performers.

The defendants are providers of mobile internet connections in Austria and enable their customers to access the World Wide Web with end devices (such as smartphones and tablets). The defendants are therefore access providers (Access Providers) within the meaning of the ECG and provide the technical connection of their customers to the internet, including BitTorrent platforms.

The defendants have been asked to make a cease-and-desist declaration extrajudicially within the meaning of the security application but refused to do so.

Request and Proceedings

Pursuant to Sec 81 (1a) UrhG, the applicant requests that the defendants be prohibited immediately from providing their customers with access to the aforementioned websites if sound carrier recordings from the applicant's repertoire are made public, i.e. also to the defendant's customers, via these pages without the consent of the entitled parties. The coveted prohibition extends in particular to the participation of the defendants as access mediators in making publicly accessible sound carrier recordings of individually named producers with individually named performers, as they could be downloaded from these BitTorrent platforms at specified times.

The defendants request that the security application be rejected. Except for the download of the BitTorrent files, all other steps up to playing the piece of music would take place, independent from the websites presented here and independent of the defendants. The websites served only as index pages on which internet users can search for music titles, did not themselves contain any protected content and also did not allow links to protected content. If you click on an indexed title there, this does not lead to the playback of a protected file but only to a BitTorrent file, which is not subject to copyright protection. Despite the suspension of the procedural websites, the BitTorrent files remained accessible to everyone because they were also available on a variety of other websites and from other sources. Unlike streaming websites, there is no structurally infringing offer. If the security application were granted, legal content would be significantly "obstructed" in terms of freedom of information. The intended ban is inefficient and leads to disproportionately high administrative costs.

The Court of First Instance issued the preliminary injunction. The Appellate Court rejected the security application. The Supreme Court allowed the judicial review and restored the first instance preliminary injunction.

From the reasons for the decision:

1. The provision and operation of a BitTorrent platform for the purpose of online file sharing among the users of this platform is a "public reproduction" reserved for the authors.

Public reproduction

1.1 Sec 18a UrhG, which implements Art 3 Information Directive ("InfoRL") at national level, gives the author the exclusive right to make the work available to the public by wire or wireless means in such a way that it is accessible to members of the public from places and at times of their choice. Because of the European legal character of the InfoRL, Sec 18a UrhG and its terms must be interpreted in conformity with the directive, i.e. autonomously and uniformly as terms of Union law (ECJ C-306/05, SGAE/Rafael, point 82, 91 et seq).

1.2 Any person who integrates unauthorized language works, photographs or cinematographic works into an internet presence for interactive retrieval is in breach of Sec 18a UrhG (RIS-Justiz RS0121495). According to the case law of the Austrian Supreme Court (4 Ob 393/86), the term public refers not only to a simultaneous public, but also to a successive public, in which the number of users is considered over a longer period of time (see Gaderer in Kucsko/Handig, urheber.recht2 § 18a UrhG Rz 14). Similarly, the ECJ ruling affirms interference with copyrights by making them accessible on the internet even if this access is designed in such a way that users can access the protected works at places and at times of their choice (ECJ C-527/15, Stichting Brein/Wullems, Rz 36 mwN).

1.3 In its recently issued decision C-610/15, Stichting Brein/Ziggo BV (which was also the reason for the interruption of the judicial review proceedings), the ECJ dealt in detail with the term "public reproduction" in connection with the operation of a BitTorrent platform. The Court points out that Article 3 of the InfoRL does not itself explain the concept of "public communication", which is why it must be interpreted in terms of its meaning and scope in relation to the objectives. The recitals 9 and 10 of the InfoRL already explicitly stipulate that a high level of protection is sought in order to provide artists with an appropriate remuneration for their added value. Recital 23 clarifies that "public reproduction" is widely understood and all forms of wireless and wired reproduction should be recorded. The interpretation of the term requires an individual assessment of several criteria that are dependent and intertwined. On the one hand, there must be an "action" on the part of the user which could constitute a public reproduction. It is "reproduction" when the user acts with full knowledge of the consequences of his behaviour in order to give his customers access to a protected work, in particular if without this action the customers would not be able to receive the broadcast work or could only receive it with difficulty (point 26). Finally, the ECJ concludes that the term "public reproduction" also covers the provision and operation of a file-sharing platform on the internet, which by indexing metadata on protected works and offering a search engine, enables users of this platform to find these works and to share them within a peer-to-peer network (para 39).

1.4 In this sense, the unauthorized provision of protected works on BitTorrent platforms is also judged in literature as interference with Sec 18a UrhG (Gaderer in Kucsko/Handig, urheber.recht2 Sec 18a UrhG Rz 34 mwN, also regarding the comparable case law of the German Supreme Court).

1.5 The ECJ also recently dealt with a similar question in C-160/15, GS Media. There the Court had asked [affirmed] whether a setting of links linking users who clicked on the link to another page on which copyright-protected nude photos of the magazine Playboy were available for download was a "public reproduction" within the meaning of Article 3 of Directive 2001/29/EC [...]. The similarity of the technical procedure in this case to BitTorrent platforms lies in the fact that in both cases the operators of the website themselves did not provide any copyrighted works, but only provided further references to pages on which the protected works were available.

1.6 In summary, it therefore does not preclude the assessment of an internet subject matter as "public reproduction" that no material protected by copyright is held or transmitted by the actor himself. Rather, the technical facilitation or promotion of copyright infringement is sufficient if - as here - the other relevant elements of the offence are present and the person concerned was aware (or should at least have been aware of it) that he is making a contribution to copyright infringement. The requirement of a knowledge element with the acting person was correctly brought into play by the ECJ in the case GS Media because it is technically easily possible to change the content of the linked website at any time when setting links to another website, whereby originally "legal" links can become "illegal" links. According to the assessment that has to be made in each individual case, a public reproduction within the meaning of Art 3 InfoRL only exists if the link setter also knew or should have known of the impermissibility of the content he linked to. There can be no doubt about the existence of this condition, even at the first arising occasion, as the operators of the respective platforms have indexed the "torrents" that can be accessed there with the corresponding content and thus deliberately promoted the behaviour that presupposes that they knew the (protected) content behind the torrents.

Claim also against the intermediary

2. An injunctive relief under copyright law also exists against intermediaries who contribute to an infringement of rights on the internet.

2.1 According to Sec 81 para 1a UrhG, which implements Art 8 para 3 InfoRL into national law, intermediaries (including access providers: see 4 Ob 71/14s (FN 3); 4 Ob 22/15m (FN 4)) can also be sued for failure to violate exclusion rights if the person who has committed such an infringement uses the services of such an exclusion; if the conditions for exclusion of responsibility according to Sec 13-17 ECG exist, the conduct of the action requires prior warning. It does not depend on the mediator's own infringing action (Dillenz/Gutman, Praxiskommentar Urheberrecht2 § 81 Rz 20).

2.2 According to literature (Ofner in Kucsko/Handig, urheber.recht2 § 81 UrhG Rz 34 ff mwN; Beimrohr, Internetsperren zur Esetzung des Urheberrechts - Die E des EuGH zum Fall UPC Telekabel Wien/kino.to, jusIT 2014, 83[84]) and Austrian Supreme Court decisions (4 Ob 41/09x; (FN 5) 4 Ob 6/12d (FN 6)), intermediaries are service providers who provide access to a network in the context of information society in order to transfer data between third parties. In any case, this includes access providers, i.e. providers that provide users with access to the internet (both the provider that enables the infringer to access the internet and the provider that enables the user of the protected work to access the internet). The defendants are therefore intermediaries within the meaning of Sec 81 (1a) UrhG and may in principle be obliged to cease and desist.

2.3 Sec 81 para 1a UrhG acknowledges the liability privilege of Sec 13 et seq ECG but a claim for omission can also be made in the privileged case when the action was preceded by a warning (see also 4 Ob 140/14p (FN 7)). It comes from Art 19 ECG that claims for the removal of infringements of rights (this also includes the right to cease and desist under Art 81 UrhG: Zankl, comment on the E-Commerce Act2 § 19 Rz 369) remain unaffected by the liability privilege. As soon as an intermediary is aware of an infringement on the basis of a warning, he is no longer entitled to the liability exclusions of the ECG (Ofner in Kucsko/Handig, urheber.recht2 § 81 UrhG 34 ff; Dillenz/Gutman, Praxiskommentar Urheberrecht2 § 81 Rz 24; RIS-Justiz RS0129808). When an incident arises, the liability privilege under ECG does not preclude a blocking order because the defendants have been informed of the situation and its illegality in a letter of formal notice.

3. The requirements for a blocking order against access brokers exist.

3.1 In decision C-314/12, UPC Telekabel, the European Court of Justice has specified the conditions for an injunctive relief of the right holder against the access provider according to Art 8 para 3 InfoRL and stated among other things that blocking orders according to Art 8 para 3 InfoRL must be in accordance with fundamental rights and in particular must preserve the entrepreneurial freedom of providers of internet access services. In the event of a conflict between several fundamental rights, an appropriate balance must be maintained between them and with general principles of Union law, such as the principle of proportionality (para 45 et seq). Especially, if the website affected by the blocking order not only contains copyrighted content but also "legal content", a blocking order is nevertheless permissible if a balance is struck between the corresponding interests, in particular fundamental rights (ECJ C-314/12, UPC Telekabel, Rz 64; see also Opinion of the GA on ECJ C-314/12 Rz 93).

3.2 In this case, too, the copyright of the right holders represented by the applicant and their right to effective enforcement (Art 47 of the EU Fundamental Rights Charter; "GRC"), protected as intellectual property under Art 17 para 2 GRC, as well as the fundamental right of internet users, website operators and defendants to freedom of expression and freedom of information under Art 11 GRC and to entrepreneurial freedom under Art 16 GRC must be weighed against each other (see Nazari-Khanachayi, Access Provider as copyright interface on the internet, GRUR 2015, 115).

Regarding the danger of legal content being blocked

3.3 The question of a blocking order interfering with the aforementioned basic rights of access providers arises with this severity, especially if legal content is also made available on the website to be blocked. However, if only or almost exclusively copyrighted works are made available on a website (such as in the case underlying the E 4 Ob 71/14s, (FN 8) kino.to), hardly any consideration is necessary, because in this case blocking would not disproportionately interfere with the users' right of access to information. However, an intervention is problematic if access to lawful information is impaired (ECJ C-314/12, UPC Telekabel, Rz 56).

3.4 In literature as well as in German case law, the quantity ratio between lawful and unlawful content is also taken into account in this context (see Thiele, BGH: Liability of an access provider for copyright infringements by third parties, ZIIR 2016, 89 f; Leistner/Grisse, Sperrverfügungen gegen Access-Provider im Rahmen der Störerhaftung[Part 2], GRUR 2015, 109 f; BGH I ZR 174/14; BGH I ZR 3/14).

3.5 However, this quantitative approach alone is not enough. Otherwise, according to the nature of the site, offers that obviously focus on infringements of the law could escape recourse by manipulating a substantial number of pro forma legal offers (Leistner/Grisse, Sperrverfügungen gegen Access-Provider im Rahmen der Störerhaftung[Part 2], GRUR 2015, 109).

3.6 In the Senate's view, it is therefore more effective to consider qualitative criteria as well as quantitative elements when weighing up fundamental rights in an overall view, in that the content of the legal information available on the website is also taken into consideration. Legal information that is exclusively available via the website in question must have a greater weight in the context of the necessary balance of interests than content that can also be accessed on other pages on the internet and thus cannot exclusively satisfy the user's need for information.

3.7 The European Court of Human Rights is probably also pursuing such a qualitative approach in questions of interference with fundamental rights and freedom of information when it states in connection with a case concerning The Pirate Bay (European Court of Human Rights 40397/12 GRUR Int 2013, 476) that "the type of information" is of particular importance in the assessment of interference with fundamental rights - when it comes to the blocking of legal content as well.

3.8 Conversely, the argument put forward in the question of an "overblocking" of access providers against blocking orders that these are ineffective because the same content can be uploaded again on other pages without great effort, can be countered by the fact that this also applies to legal content: such content can also be uploaded again without any problems onto an unblocked website and thus made available to users without restriction.

4.1 However, the question that has just been raised does not need to be further investigated in the security proceedings. On the basis of an expert opinion submitted by the applicant, the first instance court has considered it certified that the platforms in question are used for the mass distribution of illegal music reproductions by means of indexed BitTorrent files and that the platforms are therefore to be assessed as structurally infringing. The appellate court has adopted this certification result and correctly stated that the exact relationship between legal and illegal offers in the provisional procedure is not possible, but can only be clarified with expert opinions. This certification result is harmless from the point of view of prima facie evidence.

4.3 The question of whether the websites affected by the blocking order are structurally infringing because they contribute to the mass distribution of illegal music reproductions by making indexed BitTorrent files available to users to make it easier to find desired music titles is accessible to prima facie evidence. The certified technical facts are typical for platforms that contribute to enabling the user to reproduce protected musical works without the consent of the entitled parties. In addition, there are the names of the platforms ("thepiratebay"), obviously used as lures, which point to illegal access to works that are not in the public domain. The defendants have so far failed to provide evidence of relief from the concrete possibility of a different course of events (conveying predominantly legal content and exclusive information) which is why the blocking order of the first instance court is permissible under the aspect of weighing fundamental rights.

5.1 Until now, there have been no legal requirements at the European level for the blocking of websites; it was up to the member states or their respective authorities to create appropriate framework conditions or measures to remedy or prevent infringements (see Fötschl, Das Erfordernis einer Rechtssperren von Rechtsvergleichnder Sicht, MR-Int 2015, 99[104 f]). Now, with Regulation (EU) 2015/2120 on measures on access to the open internet and amending Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services and Regulation (EU) 531/2012 on roaming on public mobile networks within the Union on measures to access the open internet, the European legislator has adopted a directly applicable legal act dealing, although not specifically, with website blocking.

5.2 The aforementioned Regulation generally grants great importance to the internet and its free accessibility. Traffic management measures (including blocking or restricting content, applications or services) may not be implemented by internet providers (Art 3 para 3). Providers of internet access services may apply such measures only if it is necessary "to comply with Union legislative acts or national legislation [...] in accordance with Union law" (Article 3(3)(a)). These also include copyright blocking orders, as derived from recital 13, which lists court orders, decisions by authorities, criminal law regulations or the enforcement of fundamental rights and freedoms.

5.3 The content of the aforementioned regulation is therefore that the blocking of websites requires an explicit or sufficient legal basis (see Fötschl, Das Erfordernis einer Rechtsgrundlage für Internetsperren aus Rechtsvergleichnder Sicht, MR-Int 2015, 99[105]). This is the case here with Sec 81 Abs 1a UrhG. Contrary to what the defendants have said, this new regulation therefore does not preclude the requested blocking order.

At first to (have to) pursue the immediate perpetrator?

6.1 The main reason for the rejection of the security application by the appellate court was the argument of subsidiarity: the holder of rights must first do everything that is possible to influence the conduct of the direct infringer and can only assert claims against intermediaries if this is unsuccessful or apparently hopeless. The appellate court bases this opinion on two decisions of the German Supreme Court (I ZR 174/14; I ZR 3/14). Although the local claimant tried to take action against the direct infringers in these proceedings first, the data and addresses provided on the websites proved to be falsified, which is why the preliminary injunction could not be served against the site operators. In the opinion of the German Supreme Court, these efforts were not sufficient; further investigations (such as hiring an investigator or investigations within the framework of criminal proceedings to be initiated by criminal charges) would have been reasonable. From the point of view of proportionality, the assertion of claims against the access mediator could only be considered if the use of the operator of the website lacked any prospect of success and a legal protection gap would otherwise arise. The defendants and the appellate court concurred with this opinion of the German Supreme Court.

6.2 In the preliminary ruling proceedings of the ECJ on C-314/12, kino.to, the GA (Opinion Rz 107) took a similar position and stated that the infringed author must, "insofar as this is possible, make direct claims against the operators of the illegal website [...]". However, the ECJ has not followed this approach and has not taken direct action against the access provider dependent on unsuccessful attempts to investigate the direct perpetrator and take action against him. It has thus postulated no "subsidiarity" of the claim against the access provider. This also corresponds to the previous decisions of the Senate (see 4 Ob 22/15m; 4 Ob 71/14s; 4 Ob 140/14p). This must be maintained:

6.3 The starting point is the clear wording of the law. Sec 81 (1a) UrhG does not provide a basis for a subsidiarity of the claim against an intermediary in relation to the claim against the direct infringer. The aforementioned provision ("[...] may also be sued") rather grants the injured party a direct claim which is available irrespective of any legal proceedings brought against the direct infringer. Thus, the Austrian legal system differs decisively in this point from the one in Germany, where no comparable standard exists.

6.4 Moreover, the European legal acts (recital 59 InfoRL) already state that the access provider is the one that can put an end to a copyright infringement most effectively, since it provides the access to the internet. In addition, operators of structurally infringing websites seek not to be investigated or offer their services from countries where the legal protection possibilities are limited (in the present case Taiwan, Micronesia, Laos and Tonga, among others). For example, these websites contain the express indication that it is futile to make contact because "content will never be removed" (expert opinion Beil/G 6). The blocking order issued by the first instance court therefore cannot be opposed from the point of view of subsidiarity.

No discrimination against equality discernible

7.1 The suggestion to submit an application for the examination of standards to the Austrian Constitutional Tribunal is not to be taken up because the Senate does not share the concerns expressed by the defendant in connection with the principle of equality. The mere fact that the legislature makes internet blocking orders possible in the case of copyright infringements but not in cases of other (more serious) infringements (the defendants refer here for example to child pornography and terrorism) does not make Sec 81 (1a) UrhG a contradiction to equality because this provision treats all persons concerned equally. The Austrian Constitutional Tribunal has also repeatedly stated that the principle of equality does not oblige the legislature to do something positive and that the legislature's inaction cannot be combated based on this fundamental right (VfSlg 3810/1960, 4150, 4277/1962). The legislature may also create different regulatory systems and is not obliged to treat various similar legal institutions or regulatory matters equally (VfSlg 10.367/1985: in principle, no comparability between the CCP and the AMLA procedural law); this must also apply to the relationship between coercive measures to remedy violations of civil or criminal law.

7.2 A new referral to the ECJ can also be refrained from, as the ECJ has created sufficient clarity with the previously cited decisions to resolve the legal questions of Union law pending here.

Explanatory note:

The decision discussed here is another piece of the puzzle for dealing with the dogmatically elusive question of the responsibility of intermediaries in the Information and Law Enforcement Directive. (FN 9) In Austria the relevant Art 8 InfoRL was implemented with Sec 81 Abs 1a UrhG. These legal acts have created legal remedies against traditional intermediaries that enable or facilitate access to illegal content.

The nature and extent of the intermediary's responsibilities have been controversial from the outset. Thus, the term and the construct do not fit into the Austrian system, which up to now has been based on liability for damages. (FN 10) In fact, the intermediary's responsibility is purely there to end a violation of the law as quickly and value-free as possible by appointing someone who has the effective means to do so. (FN 11) Especially on the internet, the actual cause is often difficult to grasp. Holders of rights are therefore often dependent on being able to employ intermediaries.

Finally, over the last few years the European Court of Justice has specified in a large number of rulings - from L'Oréal (FN 12) via McFadden (FN 13) to Tommy Hilfiger (FN 14) - more detailed framework conditions for the use of a mere mediator. The Austrian submission in the UPC decision (FN 15) was groundbreaking on the specific question of the admissibility of blocking orders against access providers.

Especially with internet providers, there is a particular tension between the deliberately extended access possibilities to intermediaries and the contrary, older exemptions from liability according to the E-Commerce Directive. To facilitate European e-commerce, these saw conscious limitations of liability for the intermediaries of mere access to the network and to content. Sec 81 (1a) UrhG is a prime example of the attempt to resolve the obvious valuation contradiction between the two norms and thought processes: On the one hand, the copyright responsibility of the intermediary is postulated here, but on the other hand, a claim against the provider within the meaning of Sec 13 to 17 ECG is only granted after a warning. This in turn is in line with Sec 19 para 1 ECG, according to which even the limitation of liability has so far not prevented claims for injunctive relief against providers. (FN 16) Of course, this provision and the extent of any orders were highly controversial. (FN 17) With the UPC Austrian Supreme Court decision (FN 18) blocking orders against access providers were finally granted for the first time on the basis of Sec 81 (1a) UrhG.

This ruling confirms the essential elements of the UPC decision and finally goes one step further: The main difference to the UPC decision is that in the present case the blocking of a page, which itself does not offer any copyright infringing content, was demanded. The incriminated website serves "only" as a guide to downloading infringing content. Therefore, it is not the website itself that contains illegal content - as with kino.to (FN 19). However, the sole purpose of the incriminated platform is to make such content indirectly accessible to users.

The illegal content is not stored centrally on another page, but can be called up on a large number of different servers. With reference to the ECJ decision in the Stichting ruling (FN 20), the Austrian Supreme Court has in this case also accepted an intervention in the right to make Art 18a UrhG available: Thus, in the cited decision, the European Court of Justice was right to force the element of the offence of deliberate or at least negligent promotion of copyright infringement. In the concrete case, this was undoubtedly true - also with the blocking order against kino.to. The intermediate step of the necessary "signpost" platform and the decentralized references to other servers do not change this. As a result, the decision is correct. Like kino.to, the present platform has also aimed by self-definition to make illegal content directly or indirectly accessible.

In future disputes, great attention will have to be paid to the extent to which the potential claimant actually had or should have had knowledge of the infringements on the linked pages. (FN 21) Another exciting differentiation question will be whether and from when blocking orders can also be imposed against the brokering of access to platforms that do not provide "homogeneous" illegal content.

In the cases kino.to and BitTorrent it is undoubted that primarily copyrighted works were made available without appropriate authorization. If this is not so clear and legal content is available in addition to illegal content, considerations must be made.

The Austrian Supreme Court already provides a guideline for this in its decision. A purely quantitative comparison between the number of legitimate and unlawful content is therefore not sufficient. Otherwise, it would be possible to legitimize a deliberately illegal offer by putting a larger quantity of permissible material online, as with a fig leaf. According to the Supreme Court, a qualitative consideration should also be made. For example, legal information made available exclusively via the relevant website would have a greater weight than content that can be found elsewhere on the internet. The approach of qualitative weighing is fundamentally correct. The concrete attempt at demarcation is, of course, less suitable: in reality, neither legal nor illegal content can be exclusively accessed on one platform. Rather, an overall view will have to be based on whether the offer of the website as such is conclusive (e.g. conscious provision of free music, whereby individual pieces of music covered by a perception contract can also be accessed) or whether individual elements have apparently been included arbitrarily in order to distract and influence the quantitative criterion in favour of the legal content. Therefore, there will be no getting around an evaluation of the platform's content. In addition to the application and presentation of the platform itself - kino.to and BitTorrent were more than clear on this point - important criteria can also be an evaluation of the actual access numbers to the various contents.

At the end of the day, individual decisions will have to be made here on a case-by-case basis, which have to take careful and comprehensive account of the clash of different protected goods, fundamental rights and legal policy interests.

An important clarification is the rejection by the Supreme Court of the subsidiarity of the claim against the mediator behind the direct perpetrator, still represented by the Higher Regional Court. This is correct due to Austria's clear legal basis. Such a reclassification of the claim would be a possible legal policy approach to resolving the abovementioned contradictions of the various legal acts and interests worthy of protection. However, this would require a corresponding adaptation of the legal framework. (FN 22)

Despite the further and in the light of the preliminary ruling stringent decison on the use of an intermediary, numerous central questions remain open. For example, the distinction between (a) measures to end existing infringements and to prevent further interference with (b) expressly inadmissible general obligations to monitor in advance. (FN 23) It is equally unclear to what extent direct action and not merely omission and elimination can be demanded. The Tommy Hilfiger decision has recently already stated in a broad interpretation that it is permissible to impose an obligation on intermediaries to terminate tenancy agreements with infringers of rights. (FN 24)

It is to be expected that many more decisions will follow for the obligation of an intermediary and the limits of his claim. It remains to be seen whether this will make it possible to specify the relatively broad conditions and criteria of the acts to such an extent that sufficient legal certainty and predictability will be created for both the potential claimant and the holder of rights, or whether more detailed legislation will be required.


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