'Disturber Liability of an Access Provider' (Stoererhaftung des Access-Providers)

摘要

(a) A telecommunications company that provides third parties with access to the Internet can as a disturber have a claim raised against it by a right holder to block access to websites on which copyright-protected works are unlawfully made available to the public. The balancing assessment required in the process of testing for reasonableness must take into consideration the relevant European and national fundamental rights of copyright holders' guarantee of property, the telecommunications company's freedom of profession and the freedom of information and the Internet users' informational self-determination. (b) A disturber's liability of the Internet access provider only comes under consideration if the right holder first undertook reasonable efforts to stop those involved who - like the website operator - themselves committed the infringement or - like the host provider - contributed to the infringement by providing services. It is only reasonable to file suit against the access provider as a disturber if an action against the involved parties fails or has no prospect of success, and thus otherwise a gap in legal protection would arise. In determining the primary parties against whom to take action, the right holder must undertake a reasonable amount of investigation. (c) The assessment of the effectiveness of potential blocking measures must be based on the effects of these measures on the access to the concrete website at issue. The possibilities of circumvention that exist due to the technical structure of the Internet do not preclude the reasonableness of a blocking order as long as the blocking measures make it impossible or at least difficult to access infringing content. (d) Blocking is reasonable not only when infringing content alone is contained on the website, but also when in terms of the overall proportion the amount of lawful compared to unlawful contents is negligible. The fact that a blocking measure affects protected subject matter not only of the right holder bringing the action, but also of third parties, the assertion of which said right holder is not entitled to, does not contradict the reasonableness of the blocking measure.