Heise vs. the music industry - German appeal court rejects link ban
Since 2005, Heise has been involved in a protracted legal dispute with the music industry. In late 2008, the Higher Regional Court in Munich upheld a ban on Heise placing a specific link. Judges at the German Appeals Court have now found in favour of Heise Zeitschriften Verlag (publisher of heise online and The H's parent company).
A succession of courts had barred the German publishing house Heise Zeitschriften Verlag from placing a link to a web site operated by Slysoft. The dispute was triggered by a report on copy protection mechanisms on the heise online web site which included a link to the Slysoft main page. Slysoft produced software for bypassing copy protection mechanisms which could be downloaded from another page on the same web site. A judge in the 1st civil division of the German Appeals Court has now overturned a judgement handed down by the Higher Regional Court in Munich on 23rd October 2008 and dismissed the action by the music industry. The companies which brought the suit have been ordered to pay legal costs.
The reasoning behind the verdict is not expected to be published for several months. At yesterday's (Thursday's) hearing before the appeals court, the judges made clear in their introduction that, given the use of links as a means of reporting is in principle permissible, the core issue at the heart of the dispute is the function performed by the link in the specific report. If the link was included purely for provision of information, effectively functioning as a footnote, it would tend to be permissible. The contrary would be true if it merely served to aid readers in procuring illegal software.
Having narrowed the focus, lawyers on both sides concentrated their arguments primarily on the function of the link. Heise stressed the overarching importance of links as an original component of online reporting. As an interactive medium, links are specifically aimed at providing readers with direct access to sources and auxiliary information. The publisher claimed that the assumption that the intention was to make it easier for readers to download the software was mistaken, pointing out that, even without the link, any reader would still be able to visit the web site in question. Their lawyers argued that the only difference to simply, and legally, naming the company or the URL would be that the user would require three, rather than two, clicks of a mouse to reach the page containing illegal content.
The music industry argued that the report, and in particular the placement of the link, was in no way aimed at imparting knowledge. The sole intention of the link was, according to the industry, to make it easier for readers to gain immediate access to the software. The lawyers argued that the fact that the publishing house was aware of the illegality of the content on the site to which it was linking was in itself evidence of this fact. Placing the link amounted to a general attack on copyrighted copy protection technologies. The music industry stressed that the court's eventual decision was therefore extremely important and stated that the legislature was lagging behind in providing an acceptable level of protection to copyright holders in the online world.
The judges themselves also appeared to be divided over the issue of the function of the link, at least during the oral hearing. Heise was faced with the opinion of one judge that the link to Slysoft was of no relevance to the content of the report. The judges chairman responded by stating that, as well as being relevant to content, links could also act as evidence for the content of a report. He made clear that the balance between the conflicting interests was a fine one. Therefore the speed with which the judgement was announced, finding unambiguously in favour of Heise Zeitschriften Verlag, was all the more surprising. The judgement is legally binding, but the music industry can appeal to the Federal Constitutional Court.
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