On July 17, 2003 the German Federal Supreme Court clarified in a far reaching decision (I ZR 259/00) that the use of deep-links in general is lawful. After some controversial decisions of lower courts this case provides German Internet providers now with some legal certainty. What still remains unclear is whether a deep-link to sub-pages that are protected by technical barriers breaches German copyright law. The German Federal Supreme Court decision has not made a decision on this question.
The Federal Supreme Court had to decide about claim by a publishing company against the Internet search engine “Paperboy”. Paperboy checks numerous websites, especially of newspapers, in respect of daily news. Upon request the users of Paperboy can obtain by e-mail without payment a list of all publications that contain a certain keyword that has been chosen by the user. The first line of each entry shows the source of the article in the form of a deep-link which refers the user straight to the respective sub-page of the website of the news provider. Consequently the user is not passing the information and advertisements of the homepage of the respective news provider.
The publishing company claimed that Paperboy breached, with its search engine, its copyright in the articles and its right in its database containing the articles for the Internet presentation. Additionally it claimed an act of unfair competition.
The Federal Supreme Court ruled that the search engine does not breach the claimant’s rights. Paperboy itself is not using or copying by its provision of hyperlinks the copyright protected work. It is also not acting unlawfully because it is enabling third parties to use and copy the works. The owner of a copyright who openly publishes its work on the Internet without payment opens himself up to users making copies. Even without a hyperlink the user can straightly open the respective website if he knows the respective URL (Uniform Resource Locator). The hyperlink is only a technical help to reach the website without having to type this URL.
According to the Federal Supreme Court the service is also not breaching the German Act on Unfair Competition (“Gesetz gegen den unlauteren Wettbewerb”). Paperboy is not unlawfully exploiting the achievements of the claimant: the search engine is offering an added-value by providing a multiple number of information sources. The origin of the news is also not masked so that the provider is always visible to the user. And finally the court decided that the use of the established technology of hyperlinks cannot be waived due to the reason that the news provider looses income from traffic on the homepage. As the claimant is using the Internet for its offers it must acknowledge the restrictions the Internet provides. Without the use of hyperlinks and search engines the reasonable use of the Internet would not be possible.
It is likely that this decision will shift content providers to think increasingly about paid content business models. We assume that it will advance the distinction between free standard content and paid premium content.