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Re: using GPL api to be used in a properietary software

From: Alexander Terekhov
Subject: Re: using GPL api to be used in a properietary software
Date: Sun, 13 Mar 2005 14:58:49 +0100

David Kastrup wrote:
> So why are there numerous court decisions that "deep linking" of web
> site material constitutes copyright infringement?

Deep Linking: Legal Certainty in Germany While Debate Continues in the 
United States 
September 11, 2003

With a recent decision, the German Federal Court of Justice (BGH) 
(decision of July 17, 2003, file no. I ZR 259/00) finally resolved the 
controversy about the lawfulness of deep linking under German law. 
Previously, some German courts considered such practice to be lawful 
and others did not (see our Internet Alert of October 3, 2002). The 
courts which rejected this practice considered deep linking to be a 
violation of the data base rights of the website owner according to 
Section 87 b German Copyright Act (UrhG), which implemented the 
provisions of Directive 96/9/EC, the so-called Directive on the Legal 
Protection of Databases.

In the BGH case, the plaintiff, which publishes the newspaper 
"Handelsblatt," the magazine "DMEuro" and online versions of those 
publications, sued the Internet search engine, which 
analyzes a broad range of newspaper articles and provides deep links 
to those articles. The plaintiff took the view that paperboy's deep 
linking violated its copyrights in the articles and its database, 
and also violated Section 1 of the German Act against Unfair 
Competition (UWG).

The Higher Regional Court Cologne dismissed the plaintiff's claim, and 
with its recent decision the BGH has now dismissed a further appeal by 
the plaintiff. According to the BGH, hyperlinking is not a use that can 
be reserved to the copyright or data-bank owner. Such linking is not 
unlawful, even if it enables the user to directly access a work product 
through a deep link. An owner who provides public access to a 
copyrighted work product on the Internet already facilitates its use by 
any Internet user. Even without a deep link, a user could directly get 
to the publicly accessible work product or data with the appropriate 
URL address. Thus, the deep link is just facilitating such access.

In addition, the BGH did not consider deep linking to be an unlawful 
exploitation of the work of the plaintiff (Section 1 UWG). Users were 
not misled about the origin of the newspaper and magazine articles. The 
fact that the owner of the Internet site may lose some advertising 
revenues (because the user bypasses the home page and other pages) did 
not create a violation of Section 1 UWG. Without deep linking, the BGH 
believed that it would be practically impossible to make sensible use 
of the overwhelming amount of information on the Internet.

The BGH has not opined about situations in which a deep link bypasses 
technical protection measures intended to limit access information.

However, with the exception of these issues and other particular 
circumstances, deep linking is now considered to be lawful under German 

> David Kastrup, Kriemhildstr. 15, 44793 Bochum

GNU Republic or Germany, dak?


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