BGH on blocking injunctions: first go after the source

Last Thursday, the German Federal Supreme Court (BGH) decided on two actions against internet service providers over access to websites linking to copyright infringing material. In the first action, the collecting rights society GEMA sought to enjoin Deutsche Telekom, Germany's largest internet access provider, from providing access to the website "3dl.am". 3dl.am hosted a collection of links to files in file repositories such as Netload, Uploaded or Rapidshare (itself the subject of several BGH decisions), which contain material for which GEMA members own the copyright.
Both first and second instance ruled against GEMA, and the BGH on appeal (Revision) confirmed. The BGH reminded everybody that "Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right" (art. 8(3) InfoSoc Directive). Access providers could therefore be enjoined from providing access to sites hosting or linking to copyright infringing material if they knowingly (willentlich) provided the means to allow the infringement, provided they failed to take reasonable care ("zumutbare Prüfungspflichten verletzt").

However, the interest of the copyright owners in protection of their property, the interest of the access provider in their business (Berufsfreiheit) and the interest of the consumers in the free flow of information had to be balanced (muses Merpel, balancing is going to make for a predictable judgment for sure...). Blocking injunctions were not only permissible when the blocked domain contained exclusively infringing material, but also when the legal material was insubstantial compared to the illegal material. The fact that it was always technically possible to circumvent blocks did not mean that they were ineffective as such.

But a blocking injunction against an ISP required that the right owner(s) had first taken steps against the primary infringer, such as the website operator or host provider, and failed to stop the infringement, or it was clear from the outset that there was no likelihood of success at all to prevent the primary infringement.  The right owner(s) had to take reasonable steps, for example by hiring a private investigator or involving criminal prosecution authorities, to determine the identity and location of the primary infringer.

In the case against "3dl.am", GEMA had obtain an ex parte injunction against the operator of the website which could not be served at the address listed with the domain name registrar. GEMA then

Nope, the primary infringer is not in here

sued the host provider, but withdrew the complaint after it became clear that the host provider's address was false, too. According to the BGH, GEMA should have made further enquiries and could not go after the access provider merely because the listed addresses of the primary infringer(s) were false.

Since the full reasons for the decision are not published yet, a legal analysis is difficult at this moment. It does seem that the BGH places a rather high burden on the right owners to investigate the whereabouts of the primary infringers, and it is not exactly clear what the right owners need to do to fulfil these obligations. Fodder for lawyers, in other words.