July 18, 2003: Breaking News - Deep Links
are legal !
The German Federal Court of Justice issued a
verdict today holding that an online service which offers links to articles in a
protected database is not in violation of copyright and competition law.
The lawsuit against an online news search engine
which allowed users access to articles in the database of the plaintiffs via
deep links was based on paragraph 87 b of the German copyright law (UrhG). This
paragraph derives from European Union Directive 96/9/ECC of March 11, 1996. A
decision, which had banned deep linking by search engines to databases could
have influenced other EU member states' jurisprudence and caused significant
difficulties for search engines outside the European Union as well. Try to imagine
the internet without search engines!
The plaintiffs did not succeed with their
argument that deep links are illegal, because they take users directly to news
articles, bypassing introductory pages and advertising, thus depriving the
plaintiffs of revenue from their advertisements. In the view of the court
plaintiffs can not demand that users have to start with the homepage. The court
stressed the importance of deep links for the internet and held that it is up to
the plaintiffs to prevent deep links with technical measures, if they don't like
them. The court did not answer the question if the circumvention of these
measures would be illegal.
Where there is light, there is also darkness. The
fight about the legality of deep links is far from being over after this
decision. Upcoming Amendments to the German copyright law, which implement the
May 22, 2001 European parliament and council directive (2001/29/EC) on the
harmonization of certain aspects of copyright and related rights in the
information society, introduce a new right of making available. The discussion
if hyperlinks violate this new exclusive right of a copyright holder, has
already begun. The Federal Court of Justice adressed this issue and said that
linking does not violate the making available right, but failed to deliver a
A similiar discussion was addressed by the U.S.
Court of Appeals for the Ninth Circuit, which held that inline linking violates
the copyright owner's right of public display. For more information on this case,
So, with the new decision, a battle has been won
today, but the war is not over yet. Courts worldwide will be faced with the
issue of deep linking again. For now, the danger that courts will prohibit deep
linking, thus changing the way we all experience the internet, has been reduced
by the verdict.
Additional note: There have also been lawsuits
about the legality of deep links in the USA. More information on the lawsuit
between Ticketmaster and Microsoft can be found here,
and about the lawsuit between Ticketmaster and Tickets.com here!
linking wins court approval in Germany, out-law.com:
"The German Federal Supreme Court ruled on Thursday that deep links
from a news search engine direct to articles in a publisher’s web site do
not violate German copyright or competition law."
July 18, 2003: BGH:
Funktion der Hyperlinks steht über kommerziellen Interessen, Heise:
"Der unter anderem für Urheber- und Wettbewerbsrecht zuständige I.
Zivilsenat des Bundesgerichtshofs (BGH) hat heute sein mit Spannung
erwartetes Grundsatzurteil zur Frage der Wettbewerbswidrigkeit so genannter Deep
Links bekannt gegeben."