A long open question for the law was how responsible someone is if he sets up a link for another site and this site contains illegal stuff or changes its content to illegal stuff. For the exact purpose we assume copyright violations.

The EU court finally decided (September 8th, 2016 Az. C-160/15) that sites which are operating for profit can be hold responsible for links pointing to sites violating copyright. Not only that, but even deleting the offending link the very same day may not be fast enough. This decision caused an uproar because it threatened internet commerce, especially small shops which have not the manpower to continously search for violations.

Now in Germany there is a specific court which extended now the EuGH decision (Az. 310 O 402/16, November 18th, 2016) and declared exactly that site owners working for profit should inquire for each link if the linked site contains copyright violations.

The court itself has a website where decisions are made public. What happens now is that some aggrieved parties decided that they will now ask the court if the court can guarantee that their website does not contain copyright violations. Not only that, but as the court itself decided in former decisions that violations are "time-critical", the parties set an short ultimatum for an answer.

What exactly are the consequences if the decision of a court can be used to force it into violating the law itself ?

CLARIFICATION: The problem is not that the court may have a site with content violations, the problem is that a party having a website containing content must answer to an inquiry if their site contains illegal content in a short timeframe. The court is now flooded with requests which the court cannot answer in a reasonable timespan.

Because the question itself triggered inquiries for the exact implications, here some overview in German.

  • "Operating for profit" includes advertising and self-presentation for paid services: "Da der Antragsgegner im Rahmen seines Internetauftritts im Eigenverlag vertriebenes Lehrmaterial entgeltlich anbietet, wurde die Webseite als gewerblich eingestuft".

  • Someone operating for profit who sets a link must ask the site owner where the link is pointing if the content is legal to be on the safe side: "Für denjenigen, der mit Gewinnerzielungsabsicht handelt, [gilt] ein strengerer Verschuldensmaßstab: Ihm wird zugemutet, sich durch Nachforschungen zu vergewissern, ob der verlinkte Inhalt rechtmäßig zugänglich gemacht wurde, wobei die widerlegliche Vermutung einer Kenntnis der fehlenden Erlaubnis bestehe."

  • @K-C No. The problem is not that the court infringes copyright, the problem is that according to the decision everyone with profit intent must ask the owner of the site to be linked if there is offending material on the site. And the owner of the site must answer in a very short timeframe. That is the problem and that is the condition the court will be unable to fulfill. – Thorsten S. Dec 9 '16 at 19:40
  • Let us continue this discussion in chat. – Thorsten S. Dec 9 '16 at 19:50

The court cannot be in violation as it is not a for-profit organisation and (presumably) its sites contains no advertising.

  • I hope I clarified why the situation is a bit different than first thought and why it does not matter that the court is non-profit. – Thorsten S. Dec 9 '16 at 21:04

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