Copyright: Springer vs Adblock Plus enters another round
Partial success for Axel Springer: The BGH returns the proceedings on the admissibility of adblockers under copyright law to the lower court for retrial.
(Image: heise medien/Volker Briegleb)
The legal dispute over the admissibility of Adblocker under copyright law is entering another round. In the long-running case between Axel Springer Verlag and Eyeo GmbH (“Adblock Plus”), the Federal Court of Justice has overturned the decision of the lower court and returned the case to it for a new hearing (case no. I ZR 131/23).
Springer has been taking action against Adblocker for years. After an attempt to ban Adblocker based on competition law finally failed in 2018, Springer's lawyers turned to copyright law – with little success so far.
Springer is allowed to do it again
After the Hamburg Regional Court (case no. 308 O 130/19), the Hamburg Higher Regional Court (OLG) (case no. 5 U 20/22) also ruled in 2023 that changing the display of a website in the browser does not constitute a reworking of the code that would violate copyright law.
Springer had appealed against the OLG ruling to the BGH. Thursday's ruling by the BGH is at least a stage victory for the publishing giant. The media group can now pursue its claims for injunctive relief and damages, among other things.
The BGH does not consider the judgment of the lower court to be sufficiently substantiated. Based on the findings made by the Higher Regional Court of Hamburg, an infringement of the copyright protection area of a computer program cannot be denied, according to the BGH. The Higher Regional Court must now hear the case again and take a closer look at how a browser works.
Springer had argued, among other things, that the DOM node tree generated by the browser from the HTML code when rendering a website and the CSS structures are forms of expression of the user's own programming and are therefore protected by copyright.
Videos by heise
How does a browser work?
This cannot be ruled out based on the findings of the OLG, the BGH justified its ruling. It is not clear from the appeal judgment “which subject matter of protection” and which “relevant features conferring protection” were assumed by the lower court.
Furthermore, the OLG ruling does not indicate “that the court of appeal took sufficient account of the plaintiff's submission on the special features of a browser”. It “cannot be ruled out” that the code created by the browser is protected as a computer program and that the ad blocker “interfered with the exclusive right to it.”
The BGH was also guided by a decision of the European Court of Justice (ECJ) concerning the copyright role of certain cheats for computer games. After the ECJ found that cheats do not infringe copyright as long as they do not touch the code itself, the BGH also followed this in the proceedings brought by Sony against the German cheat provider Datel.
(vbr)
