Deep linking wins court approval in Germany

Out-Law News | 23 Jul 2003 | 12:00 am | 1 min. read

The German Federal Supreme Court ruled on Thursday that deep links from a news search engine direct to articles in a publisher's web site do not violate German copyright or competition law.

Verlagsruppe Holtzbrinck, the publishing company behind German newspaper Handelsblatt, sued, a German news search engine, arguing that it was infringing its copyright by linking direct to pages within its newspaper and magazine web sites other than the home pages – a practice known as deep linking. It also said that bypassing the advertising in its introductory pages amounted to unfair competition.

The publishing company was successful in a lower court but an appeal court overturned that ruling. Last Thursday, the Federal Supreme Court, the Bundesgerichtshof, agreed with the appeal court, reasoning that deep linking is legal in Germany.

According to a report in the German American Law Journal the court found that there was no violation of copyright law because "the copyright owner has already made the articles publicly accessible."

The German American Law Journal's report continued:

"every internet user enjoys access to the work simply by learning the uniform resource locator (URL) the court held. The hyperlink technique obviates the need to enter the URL manually and merely provides an easier and more convenient way to use the internet."

According to the Journal, the court concluded that there was no breach of competition rules either. The publishing company may well have lost revenue because users could go direct to the article concerned rather than trawl through the site and its attendant advertising, but the company had no right to demand that users take its preferred route.

According to the report, the court pointed out that the internet has certain limitations arising from its public use. Search engines – and their manner of operation – are just two of the limitations that have to be accepted.

According to the web site Links & Law – which reports on cases of deep linking – the court also said that it was up to the publishers to take technical steps to prevent deep links if they did not want the links to be made to their site. Search engines like Google explain how web sites can easily avoid their pages being indexed.

The court's ruling (in German) is here.