Google can not be used for copyright infringement claim when copyrighted works are reproduced in previews of their search engine. This was decided by the committee responsible for copyright First Civil Division of the Federal Court.
The internet search engine Google has a text-driven search function with which you can search using keywords for pictures. The images are found by the search engine in the hit list as reduced and their number of pixels compared to the item held on the original pages of illustrations reduced thumbnails shown, called thumbnails. The preview images contain links that you can go to the website that contains the figure. To shorten the search, does Google crawl the web at regular intervals after pictures and holds them as thumbnail images on its servers before, so that short time are displayed after entering a search word, the hit list with the corresponding thumbnails.
The applicant is a visual artist and runs his own website, are set to the images of their artworks. In February 2005, when you type its name as a search term into the search engine Google pictures of their art displayed as thumbnails. The applicant has taken the view that reductions of the display of images they have set on their website infringes their copyrights. The applicant would indeed that their home would be found, but that their art will be displayed as a thumbnail. It has now according omission. I § 97 Copyright Act, removal and admission of liability for damages, acc. II § 97 Copyright Act, Google Inc. asked the defendant.
The defendant argued then that would be violated by displaying thumbnails of any rights of the applicant. There had been an implied consent of the applicant been that they have set their images freely available on the Internet. The simplest measure possible, their website by including appropriate commands to be programmed so that the "crawler" search engine would not have access to over take the set contents, the applicant had not made.
The lower courts dismissed the injunction directed to the applicant. The LG Erfurt argued that implied consent is to be assumed by the applicant. According to the Higher Regional Court Jena, as an appellate court, the defendant Google Inc. has indeed violated the copyrights of the applicant illegally, since the reproduction of copyrighted Images as thumbnails in the context of search engine results, the editing right in § 23 UrhG injured. The assertion of a claim for injunctive relief against the use of thumbnails, however, is an abuse under § 242 BGB, when the source code of web page meta elements in the context of search engine optimization function used and maintained.
The Supreme Court has rejected the review of the applicant. He believed that the defendant has not committed any illegal copyright infringement. The
by the applicant, the Internet set, even painted pictures are protectable works of fine art in the sense of § 2 I No. 4 Copyright Act. It was in the opinion of the OLG Jena, as an appellate court an unlawful infringement of this, by the Copyright Act safeguarded, protection. The defendant attacks by displaying a so recycling of these thumbnails to the right reserved to the copyright under § 23 Copyright Act, because of the defendant created and are in the hit list of the search engine displayed thumbnail derivative works within the meaning of § 23 UrhG.
An unlawful exclusionary consent by the applicant is not present here. It therefore apply the general principles of the transaction, taking into account the particularities of the teaching purpose urheerrechtlichen transmission teaching.
has expressly granted the defendant the applicant here is no corresponding right to use, as an explicit declaration of consent is missing. There is no implied consent given by the applicant before by setting their pictures.
Implied declaration of intention is always present when a will is not directly in the statement finds expression, but because of external circumstances, be concluded, therefore, indirectly on the legal business will be. Basically, just to make the adoption of consent to fulfill the legal criteria this copyright infringement strict requirements. This corresponds to the transfer doctrine in copyright law recognized purpose. This rule of interpretation is expressed that the copyright powers have a tendency, as far as possible to remain with the author, so this is part of the proceeds of his work in an appropriate manner. By adjusting their images for free viewing and without technological protection measures to the Internet, the applicant no implied consent on a view to granting right of use for the transformation of their pictures for thumbnails by a search engine within the meaning of § 23 of the Copyright Act has made. This would contradict original authors' interests, since the author who wants to enjoy a work permit, in principle, does not agree that acts to be performed beyond the unimpeded work delight. The Higher Regional Court Jena was thus to the conclusion that not everyone that is a screen for free and without the view offered by the defendant blocking action adjusts to the Internet, implicitly agrees that his work is used for the purposes of § 23 UrhG I through a search engine. For an implied consent of the applicant were missing, in this case, sufficient evidence.
In this case, the applicant does, however, according to the Higher Regional Court Jena, no injunctive relief, acc. I § 97 UrhG, too. This follows from the fact that the applicant is a "search engine optimization" has made in the form that the search engine access is easier on their side, the "crawler" to the Search engines are attracted to, so to speak. In such a situation is the argument based on a lack of consent to the use of their images through search engines is improper and in bad faith within the meaning of § 242 BGB (venire contra factum proprium).
The court approved the finding of the appellate court that the applicant did not grant any express or implied legal declaration Google the right to use their works as a preview image, too. Furthermore, it is found that adjusting the images on your website, express or implied grant of a right of use pursuant to § 19 a UrhG for preview images Google it. Copyright infringement would be to affirm it. In playing in previews lying intervention in the applicant's right of § 19 a UrhG is, but not unlawful because the defendant was the conduct of the applicant, could see even without a legal declaration, they agreed with the display of their works. The Supreme Court adopted the well that already there was no copyright infringement by the defendant. While Google, the artist has no right to use of their work acknowledged as previews, but since they've optimized the content of its website for access by search engines, have to assume Google, this was in agreement with the display of their works.
Conclusion: From the press release is not clear whether the Supreme Court also helped avoid § 242 BGB and the right acc. § 97 UrhG I classify as abuse of rights, or whether he will accept in advance any copyright infringement by Google.
The court refers to the end of the release nor to cases in which the displayed images have been suspended in non-authorized persons in the Internet. Search engines are following the recent Court of Justice of the European Union under certain conditions to qualify for its services, the limitations of liability for providers of information society services in accordance with Directive 2000/31/EC on electronic Business to take advantage. Thereafter, a liability of the search engine company would only be considered if he had notice of the illegality of his stored knowledge information. This means of course that the respective copyright holder must make a report to Google if it is not a publication in the image search wishes.
Supreme Court ruling of 29th April 2010 - I ZR 69/08 Bundesgerichtshof
- Communication from the Press Office 93/2010
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