Court Allows German Website To Link To Software Company's Website Five Years Later

from the links-are-speech dept

Tue, Oct 19th 2010 9:37pm — Mike Masnick

Having recently been in Germany, and discussing the state of the law there, I have to say that I was pretty stunned with the level of liability placed on third parties in Germany. I was told, repeatedly, that German law places tremendous liability on third parties, holding them responsible for actions of users in many, many cases. So, perhaps it shouldn't have been a surprise that a news publisher, Heise, was banned from linking to a software company, Slysoft, which makes programs for copying various content from CDs, DVDs, etc., and which can be used to circumvent DRM. Way back in 2005, Heise was sued by folks in the music industry (it's unclear exactly who, and most of my searches are turning up only German reports on this -- so if anyone knows, please fill us in via the comments), and a court ruled that it could not even link to Slysoft's front page, even as the company's lawyers pointed out (correctly) that not linking wouldn't exactly stop people from being able to find Slysoft and its software, and that linking is part of how journalism works these days.

Another court in 2008 agreed, but now, five years after the original ruling, it appears that a court has rejected those earlier rulings and upheld Heise's right to link to the website of a company it was reporting on (found via Glyn Moody). It's pretty amazing in this day and age that this even needs to be discussed, but there's still plenty of confusion over this. A link is just a form of speech. It's about time that courts finally understood this simple fact.

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Filed Under: copyright, drm, germany, links
Companies: heise, slysoft

23 Comments

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Anonymous Coward, 19 Oct 2010 @ 10:13pm

Shouting 'fire!' in a crowded theatre is a form of speech. Dangerous and anti-social speech.
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- Blatant Coward (profile), 19 Oct 2010 @ 11:53pm
  
  Re:
  Really? This is all you have to do? I suggest you rent a life. Also the proper word would be 'Feuer!' in this case.
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- Anonymous Coward, 20 Oct 2010 @ 12:17am
  
  Re:
  And if linking to what you are reporting on was dangerous or anti-social, you might not look like a moron.
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- bob, 20 Oct 2010 @ 3:30am
  
  Re: Fire
  We all know from grade school forward that this though a form of speech, is not protected speech.
  So I do not know what you point is with your comment.
  
  When you have Senate candidates like that idiot in DE that does not know what the 5 protections of the First Amendment are. Or that it says nothing about a wall between one thing to another. But only attacks the other Senate candidate about her statement with regard to the lack of any wall. You have to wonder what the other Senators think of our Constitutional protections. So far it seems like they do not think anything about them at all.
  
  Regarding your statement, I have to put you in that "Do Not Think" category.
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  - Ryan Diederich, 20 Oct 2010 @ 4:44am
    
    Re: Re: Fire
    You are correct, not all forms of speech are protected.
    
    My question is, why are you arguing with Mike about this without even responding to his point of view. I dont remember him saying "everything posted is covered by free speech" or anything like that. He simply said that this should have been.
    
    By the way, this is Germany, do they have free speech?
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    - Hephaestus (profile), 20 Oct 2010 @ 7:00am
      
      Re: Re: Re: Fire
      They don't have the boy scouts. They banned youth groups years back for some reason... I wonder why ...
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- btr1701 (profile), 20 Oct 2010 @ 12:50pm
  
  Re: Speech
  > Shouting 'fire!' in a crowded theatre is a form
  > of speech. Dangerous and anti-social speech
  
  Not if there's really a fire.
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Anonymous Coward, 19 Oct 2010 @ 10:19pm

Hi Mike

Here's the summary page of the case by Heise:

http://www.heise.de/Dokumentation-Heise-versus-Musikindustrie-437717.html

You can use google translate to get a clearer picture of the whole thing. It was music companies that went against heiste and among them were: BMG, edel, EMI, Sony, Universal and Warner - all represented by the Munich lawfirm Waldorf Rechtsanwälte.
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- Modplan (profile), 20 Oct 2010 @ 12:40am
  
  Re:
  Here's an english version, Heise has a UK site:
  
  http://www.h-online.com/newsticker/news/item/Heise-vs-the-music-industry-German-appeal-cour t-rejects-link-ban-1108835.html
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  - Modplan (profile), 20 Oct 2010 @ 12:44am
    
    Re: Re:
    Oops, didn't see it was already linked in the article.
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- Mike Masnick (profile), 20 Oct 2010 @ 2:07am
  
  Re:
  You can use google translate to get a clearer picture of the whole thing. It was music companies that went against heiste and among them were: BMG, edel, EMI, Sony, Universal and Warner - all represented by the Munich lawfirm Waldorf Rechtsanwälte.
  
  Thanks!
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Anonymous Coward, 19 Oct 2010 @ 10:27pm

And here's the report about the Federal Court of Justice of Germany decision in the case:

http://www.heise.de/newsticker/meldung/Heise-vs-Musikindustrie-Bundesgerichtshof-verwirft-L ink-Verbot-1108479.html

The decision rendered by the Federal Court of Justice could still be appealed at the Federal Constitutional Court of Germany.
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Lawrence D'Oliveiro, 20 Oct 2010 @ 12:24am

You Know What�s Rich...
From the article:

The music industry argued that the report, and in particular the placement of the link, was in no way aimed at imparting knowledge. The sole intention of the link was, according to the industry, to make it easier for readers to gain immediate access to the software.

That�s right. They tried to argue that a news report wasn�t a news report at all, that it was purely a pretext for posting the link. As if people couldn't have done a Web search for the company name and found it themselves.

If you need any more evidence that the recording industry has completely lost touch with reality ...
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- techflaws.org (profile), 20 Oct 2010 @ 5:05am
  
  Re: You Know What�s Rich...
  There are some other computer magazines that prominently display "illegal" software on their front page, like "here are the tools you need to copy discs" where one could certainly admit to another angle being used.
  
  However, Heise never did this on the frontpage of their flagship "c't" (nor with any article).
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  - abc gum, 20 Oct 2010 @ 5:33am
    
    Re: Re: You Know Whatï¿½s Rich...
    I was not aware that any software has been declared illegal. What defines "illegal software"?
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    - nasch (profile), 20 Oct 2010 @ 10:44am
      
      Re: Re: Re: You Know Whatï¿½s Rich...
      In the US, I think the DMCA has been amended to make possession (and not just distribution) of tools used for circumventing DRM illegal. I don't know about Germany.
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Anonymous Coward, 20 Oct 2010 @ 12:46am

FYI: they were sued by 8 record labels, including BMG, edel, EMI, Sony, Universal and Warner
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abc gum, 20 Oct 2010 @ 4:32am

Would it be ok to disable the link and leave the URL in text form?
Is it ok to state the site starts with an "S", rhymes with fly and ends with the opposite of hard?
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Radjin, 20 Oct 2010 @ 5:23am

Be careful what you point at...
Using the courts same logic if I were strolling by with a group of friends and pointed out a building of a software firm telling them what it does, and what it does is questionable, that makes me liable also for what they do.

Who said it? "Shoot all the lawyers"
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Richard (profile), 20 Oct 2010 @ 5:24am

WTO Case
The Plaintiffs and the German courts should be hauled up before the WTO.

Slysoft is based in Antigua, and Antigua has been granted the right to disregard up to 3.4 Billion worth per annum of US IP as compensation for the US failure to comply with WTO rulings about Internet gambling. Thus Slysoft's copyright breaking capability is (arguably) sanctioned by the WTO and cannot legally be blocked.

Attempting to prevent this redress is thus legally questionable.
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- Anonymous Coward, 20 Oct 2010 @ 8:35am
  
  Re: WTO Case
  Right! Get the WTO to address anything. They are about as useful as a can of farts.
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Anonymous Coward, 20 Oct 2010 @ 8:32am

Europeans are stupid and allowing their governments to run rampant on them. The laws and rules I have heard come out of Europe in the last couple of years has been disgusting. I hope the people get some sense and rise up and tear down their communist governments. I don't even want to visit there because I am afraid of being arrested or harassed about something that is so stupid. No tourism man. Screw them and their hard ass ways. I'll stay home.
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Martin, 20 Oct 2010 @ 9:52am

The whole matter is not a question of stifled free speech. Although admittedly we germans do not have as much emphasis on free speech against other aspects of law as the US (especially noteworthy: bob, the person you refer to does not need to know the amendment, since we dont have that here)

It's illegal to circumvent copy protection (as your DMCA agrees). The argument went that Slysoft's software served the sole purpose to do that. The software as is is not illegal, but buying it in germany is, because that's deemed preparing to commit a crime. Since Heise is considered to represent their opinion with the links they present, they would be liable to support a crime. Unless they can claim it's for informational purposes. The most part of the legal fight was whether that was the case, since the article might carry the same amount of news without a link to Slysoft.
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