20 years ago: heise online takes on the music industry
On March 7, 2005, Heise-Verlag lost in court against the music industry. Because it was a matter of principle, it did not let up and was ultimately vindicated.
heise online finally prevailed at the Federal Court of Justice.
(Image: BGH / Joe Miletzki)
It came as it had to: When he received a warning letter with a penalty clause from eight music industry groups acting in concert in his fax inbox on January 28, 2005, Heise's legal counsel Joerg Heidrich was not particularly surprised. In the eyes of the corporate lobbyists, heise online had provoked them unduly, which Heidrich had already suspected. They probably couldn't let it go.
What had happened? In a nutshell: The IT news portal had dared to link to the homepage of the manufacturer Slysoft as part of its online reporting on the AnyDVD software. According to the argumentation in the warning letter, this was a violation of copyright law. AnyDVD is used to circumvent DVD copy protection and is therefore illegal. By placing a link to the manufacturer's homepage, heise online is supporting the distribution of this illegal software.
Link inadmissible
When the law firm Waldorf Rechtsanwälte sent out the warning letter for the eight music industry companies at the time, no one there probably suspected that this was the beginning of a seven-year legal dispute. The publisher did not respond to the demands, but insisted in its reply that it could continue to link to Slysoft and describe how the software worked in the interests of freedom of linking and freedom of the press.
Following the application for a preliminary injunction at the Regional Court (LG) Munich I, the injunction proceedings began. Exactly 20 years ago, on March 7, 2005, the Munich Regional Court announced its verdict: The reporting in the article was legally permissible, but not the placement of the link to the manufacturer of the copying software. Consequently, the regional court ordered the publisher to remove the link to the Slysoft website.
Videos by heise
According to the recollection of the author of these lines, who was involved in reporting on the case at the time, it was clear to the editors-in-chief of heise online and also to the publisher's management that this was a precedent-setting case that would have to be fought out to the end: The issue was whether hyperlinks could still be placed on websites in future without scissors in the head. If one had to fear being held liable for linked content, one would not set any links in case of doubt, which would run counter to the functional principle of the WWW and make the web less informative and more inconvenient to use.
Transparent documentation
The editors-in-chief also wanted this fundamental debate to be transparent and public. Anyone interested should be able to read the arguments on both sides in order to form their own opinion. For this reason, a unique agreement has been reached. Both the law firm Waldorf Rechsanwälte and the law firm Taylor Wessing, commissioned by the publisher, allowed heise online to publish each pleading promptly.
This resulted in an almost complete documentation of the legal dispute through the instances, which can still be followed here today (in the old heise online layout):
(Image:Â c't-Archiv)
After five years of proceedings through the instances with several lost judgments, the publisher succeeded in forcing an appeal before the Federal Court of Justice (BGH), Germany's highest court. On October 14, 2010, the first civil division of the BGH finally confirmed the publisher's legal opinion. In the context of online reporting, links to third-party content are covered by the freedom of the press and freedom of opinion if they "substantiate individual details of the article or are intended to supplement them with additional information". The protection of fundamental rights encompasses all aspects of freedom of opinion and freedom of the press: "It extends not only to the content, but also to the form of the expression of opinion or reporting; the right to free press reporting also includes freedom of form in addition to freedom of content."
Christian Persson, then editor-in-chief of c't and heise online, commented on the court's decision as a "clear signal for freedom of the press": "Hyperlinks are an essential component of texts on the WWW and their real added value compared to articles in magazines." Nevertheless, the music industry did not let up and lodged a constitutional complaint against the BGH ruling. On January 31, 2012, the Federal Constitutional Court rejected this appeal, agreed with the publisher's opinion and thus finally ended the legal dispute.
(hob)
