Content Regulation / Censorship, Commercial Speech
Tracy Rifle and Pistol v. Harris
Closed Contracts Expression
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A First Instance Court in Hamburg held that the Respondent had infringed the Claimant’s copyright by explaining to people in a video how users could circumvent adblocking software that belonged to the Claimant. The Court held that the adblocking software was an effective technical measure for the protection of a copyrighted work pursuant to the Act on Copyright and Related Rights (the Act) and that the Respondent had been in breach of §95a(3) by distributing source-codes which explained how to avoid the adblocking software and get free access without ads to the Claimant’s online newspaper website.
The Claimant, Bild GmbH & Co. KG, a subsidiary of Axel Springer SE, runs the online edition of the German newspaper „BILD-Zeitung”, which in general can be accessed freely and is therefore financed mostly through selling advertising space. Exclusive insights and articles can be accessed by paying for a subscription called “BILDPlus”.
Bild created a source-code called “BILDSmart” which identifies if a user entering www.bild.de uses adblocking software, so that ads on bild.de are blocked. If that is the case, the user will be diverted to a different website which gives him/her the choice of either deactivating the used adblocking software or subscribing to “BILDPlus” to use the website nearly without ads.
The Respondent, Tobias Richter, who runs a YouTube channel called “Tobis-Tricks”, uploaded a video in which he explained how to adapt the adblocking software in order to avoid “BILDSmart” and be able to access bild.de free and without ads.
The Claimant sought a declaration to cease and desist from the Respondent who subsequently deleted his video but refused to deliver the said declaration. The Claimant applied to the Court claiming that the Respondent infringed its right under §95a Urhebergesetz (UrhG – Act on Copyright and Related Rights).
The Landgericht Hamburg (First Instance Court Hamburg), ruling in favor of the Claimant, ordered the Respondent to stop spreading codes which explained how to avoid “BILDSmart” and to pay €1,764.50 in damages.
The Claimant claimed that “BILDSmart” is an effective technological measure pursuant to §95a UrhG, which states that such measures may not be circumvented without the owner’s consent if that measure exists to protect a work protected under the Act. The Respondent argued that “BILDSmart” is not an effective technological measure, but an unlawful detection measure because it identifies, without the user’s consent, whether the user is using an adblocking software and it can obtain access to personal information based on the user’s IP-address. The Respondent further claimed that he merely showed users in his video how they can protect themselves against that identification.
The Court agreed with the Claimant that “BILDSmart” is an effective technological measure pursuant to §95a UrhG. It said that the Respondent purposefully spread his codes with the aim of circumventing the Claimant’s source-code in violation of §95a(3) which prohibits the distribution of components which are mostly provided to make the circumvention of effective technological measures easier. Moreover, the Court found that there was a chance of recurrence because the Respondent refused to deliver a declaration to cease and desist.
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