Liability of the registrar in the event of copyright infringement

[Chewy_fox]

When are registrars liable for copyright infringements by domain owners according to the principles of liability for interference? We explain the legal situation on the basis of current BGH jurisprudence.

Contents overview

I. What are access providers and what are registrars?
II. Transfer of the access provider liability principles to registrars
III. Requirements of the registrar's liability for interference
1. Neither offender nor participant
2. Adequate causal contribution to copyright infringement
3. Violation of reasonable inspection obligations
a. No general inspection obligations without cause
b. Subordinate recourse to the registrar
c. Far predominantly illegal content on domain
d. Notice to registrar by rights holder

I. What are access providers and what are registrars?

Access providers within the meaning of § 8 TMG technically enable access to the Internet by providing a connection that enables network access.

Registrars play a role in the assignment of domains. The domain is the name of a website under which the website can be accessed in Internet browsers. The second-level domain is the identity-giving part of a domain; it makes the website distinguishable for internet users. If there were no domains, users would have to enter the IP address of a website into the address bar of the browser in order to access it.

DIAGRAM SHOWING THE STRUCTURE OF DOMAINS (HERE WITH OPTIONAL HTTPS ENCRYPTION)

When assigning domains, registrars act as intermediaries (also known as “intermediaries”) between the future domain owner and the responsible registry. In this function, they pass on the domain owner's data required for domain registration to the registration office on his behalf . The registration authority in turn effects the actual registration and connection of the desired domain. The connection means that the associated website is accessible to Internet users under the domain.

In short : the access provider establishes the technical connection to the Internet. The registrar administratively enables the (better) accessibility of a website under one domain. The connection in terms of technical accessibility of the domain is carried out by the registration office .

Example for access provider : Deutsche Telekom AG

Examples of registrars : 1 & 1 IONOS, Deutsche Telekom AG (= both access provider and registrar) ( list of registrars accredited by ICANN )

Example for registration office : DENIC for .de domains

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II. Transfer of the access provider liability principles to registrars

The BGH transferred to the registrar the principles of interference liability of the access provider that were valid until the third amendment to the Telemedia Act (TMG) came into force on October 13, 2017 (see BGH, judgment October 15, 2020 , Az. I ZR 13/19 ). At the same time, he made it clear that registrars do not fall under the provisions of the TMG - they are not service providers within the meaning of § 2 sentence 1 no . As a justification, the BGH refers to a functional correspondence between the access provider and the registrar .

Note : In the past, courts had sometimes ruled differently and made registrars and host providers liable as troublemakers . These much stricter views are now outdated.

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III. Requirements of the registrar's liability for interference

"In the event of a violation of absolute rights, a claim can be made to cease and desist as a disruptor who - without being a perpetrator or participant - in any way deliberately and adequately causally contributes to the violation of the protected legal interest (rspr. LG Munich, judgment of May 31, 2016 , Az. 33 O 6198/14 ; BGH, judgment of August 15, 2013, Az. I ZR 80/12 - File-Hosting-Dienst; BGH, judgment of July 12, 2012 , Az. I ZR 18/11 - Alone in the Dark). "

Since the interferer did not undertake the infringing act himself, he is only liable in the event of a breach of reasonable inspection and behavioral obligations. Which obligations are to be expected of intermediaries depends on their function and the circumstances of the individual case.

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1. Neither perpetrator nor participant

Registrars are not liable as perpetrators because they do not commit the copyright infringement themselves. Liability as a participant is also out of the question because registrars have no knowledge of the copyright infringing content at the time of their activity.

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2. Adequate causal contribution to copyright infringement

The registrar makes an adequate causal contribution to the copyright infringement of the domain owner by participating in the allocation of the domain in question. Without the participation of the registrar, the website belonging to the domain would only be accessible under its IP address.

It can be assumed that the affected website, if it could only be reached via its IP address, would not be accepted in the same way by Internet users. Without the activity of the registrar, a copyright infringement would not have been committed in the same way (see BGH, judgment of October 15, 2020 , Az. I ZR 13/19 ).

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3. Violation of reasonable inspection obligations

a. No general inspection obligations without cause

Domain assignment makes it easier to find websites. As a result, it serves all Internet users. Because the registrar takes on an important role in the allocation, its activity is in the general interest (so already with the activity of registration offices : BGH, judgment of 17.05.2001, Az. I ZR 251/99 ).

In addition, it has the effect that the registrar in no way encourages subsequent copyright infringements by merely participating in the registration and connection of a domain. The registrar's business model is therefore not dangerous, but neutral. The exercise of neutral business models must not be jeopardized economically or disproportionately more difficult by the imposition of measures (see BGH, judgment of October 15, 2020 , Az. I ZR 13/19 , with further references ).

In principle, a registrar does not have any inspection obligations against this background. In particular, he is not obliged to check on his own initiative whether copyright infringements have been committed through domains brokered by him.

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b. Subordinate recourse to the registrar

The registrar's liability for faults only comes into consideration if the rights holder has previously tried unsuccessfully to claim against the website operator and the host provider. This obligation only does not apply if prosecution against both is hopeless.

example

In the first step, the rights holder had unsuccessfully warned the website operator . The website operator's current host provider was abroad. It was known that the website operator had changed host providers frequently in the past. Should the rights holder fight for a title against the current host provider, the court believed that there would be a renewed change of host provider. As a result, the title won would not be enforceable. In the next step, the right holder was therefore allowed to make use of the registrar (see LG Munich, judgment of 07.06.2019, Az. 37 O 2516/18 ; Note: An appeal has been lodged. The appeal judgment is still pending .)

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c. Far predominantly illegal content on domain

With the use of the registrar, the right holder ultimately pursues the disconnection of the domain . The disconnection of a domain affects all content accessible there. In most cases, however, legal content can also be reached under the domains complained about.

Access to legal content falls within the objective scope of protection of the fundamental right of internet users to freedom of information . According to the criterion of strict target orientation of the ECJ , blocking measures must not unnecessarily prevent internet users from accessing legal content (see ECJ, judgment of March 27, 2014 , Az. C 314/12 ).

The imposition of the disconnection is therefore only permissible if the domain in question is predominantly illegal content , so that legal content that can also be accessed is irrelevant (see BGH, judgment of October 15, 2020, Az. I ZR 13 / 19 with reference to BGH, judgment of November 26, 2015 , Az. I ZR 174/14 ). In this way the jurisprudence counteracts over-blocking . In the weighing up, the fundamental rights of all those affected by disconnection are taken into account :

Registrar

- Entrepreneurial freedom: Art. 16 EU-GrCh
- Freedom of occupation: Art. 12 para

Rights holder

Protection of intellectual property: Art. 17 para. 2 EU-GrCh, Art. 14 para. 1 GG

Internet users

Freedom of information: Art. 11 para. 1 EU-CFR , Art. 5 para. 1 sentence 1 GG

d. Notice to registrar by rights holder

If the above prerequisites are met, the registrar will only be obliged to check if he receives a reference to a clear, easily ascertainable violation of the law from the rights holder . The notification must enable the registrar to determine the copyright infringement without a detailed legal or factual examination 

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