Deep-linking legal in Germany

The German Federal Supreme Court ruled on 17 July that deep links from a
news search engine to articles on a publishers web site do not violate
German copyright or competition law.

The plaintiff, a media group that publishes several newspapers and
magazines, including ‘Handelsblatt’ and ‘DM’, sued the search engine
provider www.paperboy.de for forbearance. After initial success at the
trial level (‘Landesgericht’), the case was dismissed on appeal
(‘Berufungsgericht’) which in turn was approved by the Federal Supreme
Court.

The supreme court stated that deep links do not violate copyright laws
because the copyright owner has already made the the articles publicly
accessible. Because the authors enjoy discretion of whether they, despite
the immanent risks of lawful or unlawful use such as reproduction, would
post works on the internet, they provided free public access. Therefore,
every internet user enjoys access to the work simply by learning the
uniform resource locater (URL), the court held. The hyperlink technique
merely provides an easy and convenient way to use the internet.

The exploitation of the plaintiffs work does not violate unfair
competition laws, the court concluded. While a plaintiff may suffer
damages as a result of fewer hits on advertisement banners on its website,
it may not demand such detours. Whoever uses the internet has to put up
with the limitations resulting from the legitimate interests of the public
in effient usability of this medium.

The German case is very similar to a Dutch case, instigated by newspaper
publishers PCM against the search engine kranten.com. In August 2000, a
local Rotterdam court found the deep-links perfectly legal, using the same
line of reasoning as the German Supreme Court in this case.

Report in German American Law Journal (18.07.2003)
http://63.142.46.199/cgi-bin/amlaw.cgi/z718paperboy.html?seemore=y

Press-release Bundesgerichtshof
http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Sort=3&Datum=2003&Art=pm&anz=96&pos=0&nr=26553&id=1058556825.88