Wednesday, 12 December 2012

Removing a Link Does Not Remove Infringement

The Upper District Court (OLG) in Karlsruhe was confronted with a case of infromgement of the copyright of a photography. The photography was used in an editorial context in the internet and the infringer had signed a cease-and-desist declaration obliging him to remove the infringing content and to pay a fixed contractual penalty immediately in each new case of violation.

The infringer removed the link but kept the photography on the server. The copyright owner, who presumably had bookemarked the URL in order to check whether the infringer would follow his duties, then claimed that a contractual penalty was due. 

The court found this claim to be valid and rejected the defence that the content was not practically accessible due to the lack of a link from the editorial part of the web pages. The court confirmed the established case-law that the fact that everybody who had stored the URL in advance (just as the copyright owner or his representative) could access the content was sufficient to make the content available to the public.

It goes without saying that similar arguments will apply to internet-based trademark- or patent infringements provided that the content qualifies as an offer for sale. The lesson to learn is that it is better to entirely delete any potentially infringing conent from the web server rather than relying on the non-accessibility after the deletion of a link.

The question whether it would have been sufficient to modify the URL in such a way that it would qualify as a kind of password.

The full text of the decision can be accessed via Justizportal Baden-Württemberg here.

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