[x-pubpol] Music Industry loses 7 year legal battle over 1 German link

[Joly MacFie]

https://plus.google.com/116710254473860452425/posts/dGPPXkYq6t8

After more than seven years of fierce legal fights, the music industry has
lost a key court battle against the leading German IT publishing house
heise media group (http://www.heise-medien.de http://www.heise.de +heise
online <https://plus.google.com/105775270214007020446>). (Disclaimer: The
family owned heise media group is a customer of mine, I've been a
correspondent for them for many years. However, I'm not involved in this
specific situation.)

Outcome after over seven years of court proceedings: It is legal in Germany
for the press to report on tools that circumvent copy protection, and, as
part of such reporting, it is also legal to place a link to the homepage of
a company that sells such tools.

The story:

On January 19, 2005, heise posted a news article about a software called
"AnyDVD" on its website.

http://www.heise.de/newsticker/meldung/AnyDVD-ueberwindet-Kopierschutz-von-Un-DVDs-128175.html
(The original article in German)

This software, published by the Antiguan company Slysoft, enables users to
remove CSS "protection" from DVDs and thus copy them. This includes DVDs
that are not actually DVDs because they do not adhere to the DVD standard
but use corrupt sectors to make copying more difficult.

Eight companies, including BMG, EMI, Sony, Universal and Warner, sued heise
and wanted the complete article censored. The court did not agree as this
would interfere with the freedom of the press. But the first court issued
an interim injunction that forbid heise.de to place a link to the Slysoft
website.

On Slysoft's website, the software could be acquired. It is commonplace at
heise.de to include links to the websites of companies that are mentioned.
In this case, the links was easily available on search engines or could
simply be guessed.

Both sides appealed, but the next court upheld the original interim
injunction: The article is no advertisement for illegal tools but news
reporting; however, the link to the Slysoft-website must be removed as it
would abet copyright violations.

Heise appealed to Germany's constitutional court, but was not heard. That
was in 2007.

Note that this was all about the interim injunction!

November 2007 saw the first ruling in the main procedure against heise,
confirming the interim injunction. Eleven months later, the next level
court confirmed this ruling.

Another two years later, the highest civil court in German
(Bundesgerichtshof) surprised everyone involved: On the very same day as
the hearing, the Bundesgerichtshof lifted all previous rulings, declared
the article and the link legal.

Such a quick, immediate decision is highly unusual. The court basically
told the music industry to go and make love elsewhere.

Freedom of expression and freedom of the press are fundamental rights -
which includes not only the content but also the form of expression. Links
are legal, if they provide proof of or further information in regards to
the content of the text. The music industry was sentenced to cover all
costs of the courts and the heise media group.

Still, the music industry did not give up. They went to the court in charge
of constitutional affairs (Bundesverfassungsgericht), claiming a violation
of constitutional rights.

Another 15 months later, the Bundesverfassungsgericht sided with the
Bundesgerichtshof and denied all motions of the music industry.

This ruling is final and can not be appealed in Germany. The heise media
group, and with it the freedom of the press, have won.

Kudos to the family owned heise media group for taking the financial risk
fighting this through the courts for over seven years!

A documentation of this case is available in German at
http://www.heise.de/Dokumentation-Heise-versus-Musikindustrie-437717.html

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Joly MacFie  218 565 9365 Skype:punkcast
WWWhatsup NYC - http://wwwhatsup.com
 http://pinstand.com - http://punkcast.com
 VP (Admin) - ISOC-NY - http://isoc-ny.org
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