To avoid nuisance liability, a file-hosting service be required, the usual search process to review a small number of relevant collections of links manually

a) A file-hosting service, the online space provides, may be liable as a disturber, if infringing files are made by users of its service to the public, although he previously a reference to the clear violation of the law has been given. After a such an indication, the file-hosting service in preventing the technically and economically reasonable, that the same or other users of the specifically named him, Third copyrighted work offer again on its servers.

b) The suitability of a word filter with manual follow-up for the detection of copyright infringement will not be eliminated, that it possi-ble acts of infringement are not entirely.

c) To avoid nuisance liability, a file hosting service also obliged, the usual search process a small number of relevant link collections manually to check out, whether they contain references to certain stored at him infringing files.

BGH, Judgment of 12. July 2012 – I ZR 18/11 – OLG Dusseldorf
LG Dusseldorf


JUDGMENT BGH I ZR 18/11 – Alone in the Dark

Copyright Act § 97; TMG § 7 Abs. 2, § 10

The I. Civil Division of the Federal Court of the oral negotiation 12. July 2012 by the presiding judge Prof. Dr. Bornkamm and the judge Prof. Dr. Büscher, Prof.. Dr. Schaffert, Dr. Kirchhoff and Dr. Loeffler
hereby:
On appeal by the plaintiff, the judgment of the 20. Civil Division of the Court of Appeal of Dusseldorf 21. December 2010 repealed.
The thing is for a new hearing and decision, also about the cost of the revision process, referred back to the Appeals court.
By rights
Facts:
The applicant is a world leader in computer- and Video Games, it publishes and distributes. Among their most successful titles, the computer game is "Alone in the Dark". The defendant, a stock corporation with headquarters in Switzerland, provides the Internet address space www.rapidshare.com users on the Internet ("File-hosting service"). With this service, users can upload with a single click from one of his own-selected file on the website of the defendant, which is then stored on its servers. Immediately after uploading the user is sent a download link, with which it can access the file stored on their browser.
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The defendant is not the content of the uploaded files known. It also maintains a table of contents of these files. However, it is possible, with Search Engine (so-called "link collections") according to certain, to look on the servers of the defendant files stored.
The defendant provides for the use of their service to two options. Without registration, the service is free, be used but only in limited circumstances. In particular, the uploaded files are downloaded more than ten times. There is also the possibility, according to the user's registration for up to 6,99 € set a monthly premium account. The Premium account allows any particular a frequent tot and faster downloading of files.
The defendant assigns points to premium users, the uploaded files are accessed by other people. These points can be redeemed for a premium account, or used for its extension. The defendant also provides the software "Rapidshare Uploader", with which a user can upload in a single step as many files on the server by the defendant.
At the 19. August 2008 learned the applicant, that the game "Alone in the Dark" on the Internet service of the defendant to the public was. After entering the search words "Rapidshare Alone in the Dark" on Google the game was through activation of links with the IDs "rapidshare.com / files ..." retrieved and downloaded to the hard drive of the polling ends. The applicant urged the defendant because of this fact from the same day. With letter of attorney 22. August 2008 bestätigte die Beklagte die Sperrung der in der Warning aufgeführten konkreten Links zu dem Spiel.
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The submission of a punitive desist, in which they should commit particular,
to refrain, copyrighted works of A. , particularly the computer game make "Alone in the Dark" on the Internet or in any other way open to the public, distribute and / or reproduce or allow perform such acts by third parties,
however, the defendant rejected.
The applicant stated, the game "Alone in the Dark" is in any event until 2. September 2008 available on the servers of the defendant ge-essential.
As far as the dispute is reached in the appellate, , the plaintiff sought,
There the defendant, under threat of unspecified order means to un-age agen, das Computerspiel „Alone in the Dark“ im Internet, especially on servers operated by the defendant for the website www.rapidshare.com reproduced or duplicated in any other way to read-sen or available to the public or to have it this action by third parties, only
a) where the computer game with a file name, which is entitled "Alone in the Dark" contains, stored on the servers or
b) where www.raidrush.org hyperlinks to the game with the URL rapidshare.com / files in the collections of links, rapidlibrary.com, rapidshare-searcher.com, alivedownload.com, taringa.net, freshwap.net, hotfilms.org, recorded rapidfind.org and / or are rapidsharedownload.net, or
c) …
The district court ordered the defendant in the terms sought. In the appellate instance, the applicant in the application to b) the words "in the game" by "files, containing the computer game, Alone in the Dark '", replaced. The appellate court dismissed the action (OLG Dusseldorf, MMR 2011, 250).
With its Court of Appeal approved revision, their rejection, the defendant sought, the applicant pursued their appeal in the-
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instance applications made further, where they are no longer on fair trading law-tion, but only based on copyright claims.
Reasons:
I. This Court has considered the application to be unfounded and here-to run:
Although a violation of the law lies in the meaning of § 97 UrhG; because the Internet service of the defendant indisputably illegal copies of computer terspiels would "Alone in the Dark" available for download. A responsi-bility of the defendant as the perpetrator or participant is ruled out but, not because they, but only chose the recipients of their service on the announcement of the down-load links and so on providing public access to the file and ih-res content and required for a participant liability, , at least conditional intent in relation to each specific predicate offense lacked. The conditions of a nuisance liability had not stated the applicant. The liability of the defendant depended crucially on, whether they have done according to the knowledge of the infringements reasonable to prevent her of similar violations. As the business model of the defendant, as such, is not based on the use of illegal content set, it was not unreasonable, On account of verification obligations to their entire business model into question. Although the applicant can easily find all files with filenames, the title "Alone in the Dark" contained. However, it was her regularly impossible to determine, whether it is the found file-s a question of the said computer game or, for example, travel photos of a third party. These difficulties presented increases after application to b), because most of the collections of links mentioned there was no suitable-
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in, to find infringing content and to block any such Links. Under those circumstances, a violation of inspection duties by not loading accused as a condition of nuisance liability apparent.
II. The complaint against the same assessment audit is successful. They lead to the repeal of Appeals judgment and remand the case to the Court of Appeal.
1. The international jurisdiction of the German courts derives from Article. 5 No.. 3 the Lugano Convention on jurisdiction and the competence of and the enforcement of judgments in civil- and Commercial Matters by the 16. September 1988 (Gazette. 1994 II S. 2658). The applicant submits the claims of tort committed in Germany – the public making available the computer game "Alone in the Dark" – claims.
2. The computer game is in any case as the applicant works, that has been created like a cinematographic, under § 2 Abs. 1 No.. 6 Copyright Act copyright protected. It is believed, that the applicant is authorized as an editor of the Game, the rights of the author to assert (§ 10 Abs. 1 Copyright Act).
3. Applicable, the Court of Appeals denied the liability of the defendant as the perpetrator or accessory for crimes committed by their users in terms of the game copyright infringement.
a) The files with the game are protected by users of the file-hosting service, the defendant existing in violation of copyright (§ 15 Abs. 2 No.. 2, § 19a Copyright Act) by the announcement of the access links on the internet made public, without the defendant before the contents of these files Notes. The defendant can not under these circumstances
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täterschaftliche not commit copyright infringement. Because they met there-by, users to their service available to and from these there are copyrighted works made in copyright infringing manner accessible to the public, not even the fact of a breach Urheberrechtsver. In particular, it makes the files are not even available to the public and they are not reproduced well (vgl. to Trademark BGH, Judgment of 19. April 2007 – I ZR 35/04, BGHZ 172, 119 Rn. 31 – Internet Auction II; Decision of 10. More 2012 – I ZR 57/09, juris Rn. 4).
b) A liability of the defendant as an accomplice in the crimes committed by third parties using their service-res copyright infringement leaves also. The requisite culpable intent it is not enough, if the working complained of occasional violations by the users of their services included. What is needed would be a knowledge of the defendant of specific impending principal offenses (vgl. BGHZ 172, 119 Rn. 31 – Internet Auction II; BGH, Judgment of 12. July 2007 – I ZR 18/04, BGHZ 173, 188 Rn. 21 – Youth-endangering media on eBay; Judgment of 18. November 2010 – I ZR 155/09, Wheat 2011, 617 Rn. 33 = WRP 2011, 881 – Sedo; Decision of 10. More 2012 – I ZR 57/09, juris Rn. 5).
4. This Court has adopted, the injunctions of the applicant are not justified in terms of nuisance liability, because the defendant did not violate any obligation to inspect. Holds on the basis of the findings so far no legal standing audit review.
a) As spoilers in the absolute rights violation can be claimed for an injunction, who – no perpetrators or participants to be – in any way deliberately and adequately-causally to the injury of the protected-
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th legal right contributes. Since the nuisance liability can not be unduly on others-he stretches, the unlawful interference not even have taken pre-, liability on the part of the interferer to the Court's decisions require the violation of inspection duties. Whose scope is determined after, whether and to what extent acceptable to the troublemakers as Inanspruchgenommenen under the circumstances is a test (vgl. BGH, Judgment of 30. April 2008 I ZR 73/05, Wheat 2008, 702 Rn. 50 = WRP 2008, 1104 – Internetverstei-III delay; Judgment of 12. More 2010 – I ZR 121/08, BGHZ 185, 330 Rn. 19 Summer of our lives; BGH, Wheat 2011, 617 Rn. 37 – Sedo). A gen-eral assessment obligation of service providers within the meaning of § § 8 to 10 TMG for the set of users on their server files is § 7 Abs. 2 Sentence 1 TMG against. After that service providers are not obliged, to monitor the transmitted or stored information or to investigate some circumstances, suggestive of illegal activity. After this rule, on the way. 15 Abs. 1 Directive 2000/31/EC on the elec-tronic commerce based, monitoring obligations are of a general nature excluded. Not excluded, however monitoring obliga-tions are in specific cases. Service provider, the information provided by recipients in-formation to save, must also apply to the reasonably expected from them and put into national law niederge-diligence, to certain types of illegal activities to detect and prevent (Recital 48 Directive 2000/31/EC; vgl. BGH, Wheat 2011, 617 Rn. 40 – Sedo). This Senate-positioned policies are consistent with the standards, which the Court of Justice of the European Union in its judgment of 12. July 2011 (C-324/09, Wheat 2011, 1025 Rn. 109 ff., 139, 144 = WRP 2011, 1129 – L'Oréal / eBay) has established (vgl. BGH, Judgment of 17. August 2011 – I ZR 57/09, BGHZ 191, 19 Rn. 22 ff. – Perfume Pen).
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b) Of these principles is also presumed in case of dispute.
aa) The defendant is the Service Provider in accordance with § 2 No.. 1, § 10 Sentence 1 No.. 1 TMG. The saved files are not private information of the defendant, which it makes available for use by third parties and for which it according to § 7 Abs. 1 TMG is responsible under the general law; Rather, it han-DELTA are external information within the meaning of § 10 Sentence 1 TMG. The files are uploaded by users on the server of the defendant and the mere fact made available to third, that they pass on the information provided by users of Defendants download link. The user, thus controls the spread of the uploaded files it. This distinguishes the business model of the defendant's mediation- and auction sites on the Internet, where by the users – if often automatically – uploaded offers may be made publicly available by the platform operator. The causal contribution of Defendant Rechtsverletzun-tions of their users is therefore a starting point less than that of platform operators. A selection or examination of the files saved by the defendant, which could possibly be, that the contents their own, not done.
bb) A more detailed examination of the defendant's liability for carrying intentional hazard proneness of the service offered by it for copyright rights violations is not. Although the Court of Federal desgerichtshofs is a business committed before becoming aware of a specific infringement, eliminate the danger, if its business model is designed from the outset to rights violations by the user is scope of benefits or the trader with their own actions promotes the risk of infringing use (vgl. BGH, Judgment of 15. January 2009 – I ZR 57/07, Wheat 2009, 841 Rn. 21 f. = WRP 2009, 1139
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Cybersky). Such a situation is not in dispute before but. It therefore requires no discussion of the question, the relationship of these Senate jurisdiction is to decisions of the Court of the European Union (vgl. ECJ, Wheat 2011, 1025 Rn. 107 ff. – L'Oréal / ebay).
(1) The defendant is basically in accordance with the law of a business as a service provider in accordance with § 2 No.. 1, § 10 Sentence 1 No.. 1 By TMG. The appellate court assumed without making an error, that legitimate uses of the service of the defendant, Handsome for a considerable technical and economic need exists, in large numbers exists and are common. In addition to use as a "virtual locker" for secure storage of large amounts of data for business or pleasure, the service can be used by the defendant, certain users own ne or public domain files for downloading or editing make idle mode. This is, as well as the applicant accepts, as for business customers consider, who want to give their clients access to certain information, or for individuals, who want to exchange self-created digital images or movies with friends or acquaintances. It is easy to build a legitimate need for mass downloading large files are made by third parties – a feature, issuing-forth the defendant as an advantage of their service.
Therefore it can not be assumed, the business model of the defendants should be created, that its users – especially in connection with computer games and movies – Commit copyright infringement.
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(2) Contrary to the plaintiff, the defendant is not supported by their own actions, the risk of infringing use of their service.
As a commercial company, the defendant committed, To generate revenue, what part of their business model is only possible through the sale of premium accounts. The associated comfort features above all in terms of speed of loading operations, Duration of data storage and size of uploaded files are also in a variety le-galer uses of importance. The same applies to the provision of the free "Rapidshare uploaders" to upload as many files in a single operation.
And the award of premium points by the defendant can not be regarded as encouraging illegal uses. According to the findings of the District Court, to the Court of Appeal reference genome-men has, Premium users will receive points, if an uploaded file from them by others is called. To a dependence of the points of the size of the requested file is not found; The audit also alleges no, corresponding presentation that had been held by the applicant in the lower courts. In addition, there, as indicated above, many also for downloading large files legal application possibilities.
cc) The defendant may under these circumstances no control measures are imposed, their business model economically jeopardize or impede their activities disproportionately (vgl. BGHZ 172, 119 Rn. 147 – In ternetversteigerung II; 173, 188 Rn. 39 – Harmful to young media on eBay; BGH, Wheat 2011, 617 Rn. 45 – Sedo; vgl. also ECJ GRUR 2011, 1025 Rn. 139 L'Oréal / ebay). In particular, the defendant is not obliged, by
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monitor their stored information or for circumstances to between for-, that indicate illegal activity (Art. 15 Abs. 1 RL 2000/31/EG – transposed by § 7 Abs. 2 TMG). A statutory audit of Defendants with respect to the computer game "Alone in the Dark", whose violation may justify re-offending, could therefore only arise, after it had been pointed out by the applicant in a clear violation of the law in relation to this game (vgl. last BGHZ 191, 19 Rn. 22, 26, 38 f. – Stiftpar-füm).
(1) The defendant's attorney by letter dated 19. August 2008 been pointed out by the applicant in a clear violation of the law in relation to the computer game "Alone in the Dark". From this moment, she was not only obliged, actual offer to immediately block, but instead had to make provision also, that it was not possible to further similar violations (vgl. BGH, Wheat 2011, 1038 Rn. 39 Perfume Pen).
(2) After the Court of Appeal referenced find-tions of the district court, the game was "Alone in the Dark" from the still after the scream-ing of lawyers acting 19. August 2008, which established the obligation to examine the defendant, namely, at least until the 2. September 2008, available on the defendant's servers.
dd) For this – later revealed – Be the infringement defendant is liable as a disturber, if, after the notice of 19. August 2008 not everything has done its technically and economically reasonable, prevent further violations INFRINGEMENT, in terms of the game "Alone in the Dark" on their servers to. Contrary to popular belief, the Court of Appeals, after egg-ne Störerhaftung the defendant is certainly considered.
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(1) Although the defendant did it by the letter 19. August specifically named files locked. But she was also obliged, to take care, that did not result in further similar violations. Such similar rights violations are not only offers, which are identical to the known cases, So the concern that making available the same computer game by the same user. Rather, the defendant in the technically and economically reasonable to prevent, that neither the person responsible for the violation Displaying user other users on their servers specifically named her the third copyrighted computer game offer (vgl. comparable to the case of liability of the operator of an auction platform in the Internet BGHZ 173, 188 Rn. 43 – Harmful to young writings on eBay). The Urheberrechtsverlet-tion is based on the specific copyrighted work. For the purposes of liability for interference are infringing acts similarly, by this copy-right is violated again. It depends not on the person desjeni-tions, met by making available the protected work the injury factual.
(2) According to the findings of the court taken so far, it is possible, that the defendant has violated the obligation to check in, that after the 19. August 2008 no word filter for the sequence of contiguous word "Alone in the Dark" was also used to verify the data stored on the file with the name.
The appeals court is expected, that the defendant without further teres, all files found with a file name, of the title "Alone in the Dark" contains. Although the defendant – immediately after her presentation – after receipt of the notice to the applicant on 19. August 2008 the concept of "Alone in the Dark" was added to their word filter. The loading of the-
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complained used word filter notifies the employee of their department responsible for abuses-tion, however, only automatically, whenever a file is uploaded on the servers of defendant, in a certain key term appears. Such only to upload files a controlling Wortfil-ter is unsuitable, the more publicly making available already to prevent stored ter Games.
It is therefore obvious, that the defendant must use a word filter for together menhängenden term "Alone in the Dark" also have, to verify the names of the files already stored in their. Based on the findings of the court is not obvious, why the defendant should not be possible and reasonable, by the use of such a word filter files generated on their inventory manually check out Hit, whether it is the game of the applicant. These control measures are also useful, further violations on the servers of the defendants reveal. It is irrelevant in this context, that users may have many different opportunities, save the game under different filename. The suitability of a word filter with manual postcondensation-control for the detection of copyright infringement will not be in-seitigt, he possible infringements are not entirely.
(3) A breach of the obligation to examine the defendant is based on the findings to date in view of the sub-lassungsantrag from b) recorded collections of links considered.
As far as hyperlinks in these collections of links to files, stored on the servers of the defendants and contain the computer game "Alone in the Dark", is it's infringing acts, with the
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violations found regarding the game "Alone in the Dark" gleichar-tig, and to which the audit obligations of the defendant, after informing principle extend, after it has been on relevant violations tet teach-.
The judgment of the court below, the defendant was not a review of the relevant link collections reasonable, is based on findings, who has not taken the court procedural errors. It is certainly true in the base and in accordance with the Higher Regional Court Cologne (MMR 2007, 786) assume, that regular monitoring of a three-digit number of link resources on the Internet exceeds the service provider reasonable verification options, that it may be, but it is reasonable, a small number of relevant collections of links – the request to b) refers to nine collections of links – To check out, if she named him to the, stored on their servers computer game lead. To the extent the Court of Appeal said, most of these link collections are conceptually not suitable, infringing content uncover, find this in the parties, no support. As far as the Court of Appeal has set its judgment in this context the technical knowledge of its members on the operation of the link collections based, it would – as the appeal alleges successfully – the parties have an opportunity to give opinion to. The applicant would then be placed under expert evidence, that it is now using the same techniques, with de-tion engines and interested users find the download links, possible, automated link to browse the collections and find the appropriate links. It would in particular have to take into account, that the request to b) only links with the component "rapidshare.com / files" captured.
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Moreover, the defendant is basically a manual control at any rate a single digit number of link collections unreasonable (vgl. OLG Cologne, MMR 2007, 786, 788). It can not be assumed, that this would be very promising from the outset or required an undue burden. Function of the link collections, it is precisely, Interested in using electronic references (Links) to result in computer games, which is stored on the servers of file-hosting services such as the defendant's, but where – undermining to possible word filter – the (complete) Title of the computer game is not specified. The link lists have therefore the particular computer game, to which the interest is, as clearly denote. So it is when applying to b) Links to, which lead to the data stored on the servers of the defendant files with the game "Alone in the Dark", without this title is used in the file name. Because so far as the file name of the related words "Alone in the Dark" contains, the file can already be found with the help of a word filter on the servers of the defendant. The review of Linksamm settings by manual entry of the title may then a relatively simple, the defendant reasonable way be, also to identify those files on their servers acids, although the game "Alone in the Dark" included, with the usual word filter but can not be disclosed.
The fact, that the defendant is not the operator of the link collections, does not prohibit the. Because it's not about, there any links delete, which lead to the relevant computer game. Rather, the loading complained in this way find the files on their servers and de-lete, which included the game in question, with conventional word filters but because of the use of a different file name can not be disclosed. Requires the participation of the operator link collections are not sure.
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Links to the "taringa.net" contains the appeal judgment in the rest of the no findings, so that is open, followed the rejection of the request at this point is based.
5. The denial of liability for interference by the Court of Appeal was therefore holds no legal jurisdiction. The appellate decision also proves to be no other reason to be correct (§ 561 ZPO).
The applicant's claims fail, however, the concrete form of injury. For with the a through the requests to) and b) further concretised formulation, to prohibit the defendant "the computer game" Alone in the Dark "on the Internet, especially on servers operated by the defendant for the website www.rapidshare.com or leave otherwise repro-tions or available to the public ", ties in the omission of the applicant to a RESOLUTION täterschaftliche liability of the defendant. Considered but is only a nuisance liability. The Court of Appeal in the first instance of the successful applicant could, under § 139 Abs. 1 Sentence 2 Code of Civil Procedure must be an opportunity for a relevant application, focusing on the level of participation of the defendant as the interrupter, So "Alone in the Dark" to the holding of files using a computer game on their servers, refers.
6. The appellate decision must be annulled. Since the defendant is oppor-tunity to give the position of relevant applications and it also further findings on the question of the acceptability of test measures for the defendant and the injury requires te, is the case back for a new trial and decision of the Court of Appeal (§ 563 Abs. 1 ZPO).
III. For new trial before the Court of Appeal, the Senate would point to the following: The Court of Appeal has been no findings as
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hit, whether the game is secured by the applicant and a copy as then, if the claim of the buyer to make a backup copy in accordance with § 69d Abs. 2 Copyright Act is fulfilled. Therefore, it is for the appellate not exclude, that individuals in accordance with § 69d Abs. 2 Copyright Act permissible ger way back up the game "Alone in the Dark" – not for the defendant te recognizable – save it for their personal use on servers of the defendant. Even if the defendant would have to delete but after using Word filters and manual control of the search results, in some cases legal backup copies of the game, This would give her the fulfillment of the obligation to make testing not unreasonable. Because they can protect themselves contractually to their users by indicating. The user, to be informed about the deletion of the file, are then able to make a rule without-other in any other way to secure the game precautionary. Not be excluded, that in this way, the legal use of the offer of the defendant is limited to a small extent.
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Such a restriction would be to accept in order to effectively protect the copyright, as long as the business model of the defendant can not be called into doubt.
Bornkamm Buescher Schaffert
Kirchhoff Löffler
Lower courts:
LG Dusseldorf, Decision of 24.03.2010 – 12 The 40/09 –
OLG Dusseldorf, Decision of 21.12.2010 – The U-20 59/10 –

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