Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, GEMA, I ZR 3/14

(1) The Court decided on actions against internet service providers over access to websites linking to copyright infringing material. The collecting rights society GEMA sought to enjoin Deutsche Telekom from providing access to the website "3dl.am," hosting links to files in file repositories such as Netload, Uploaded or Rapidshare, which contain material for which GEMA members own the copyright.

(2) According to Article 8(3) of the InfoSoc Directive, the Court noted that access providers could be enjoined from providing access to sites hosting or linking to copyright infringing material if they knowingly provided the means to allow the infringement, provided they failed to take reasonable care. Additionally, blocking injunctions were not only permissible when the blocked domain contained exclusively infringing material, but also when the legal material was insubstantial compared to the illegal material.

(3) The Court also noted that the fact that it was always technically possible to circumvent blocks did not mean that they were ineffective as such.

(4) However, a blocking injunction against an ISP required that the rightholders had first taken steps against the primary infringer, such as the website operator or host provider, and failed to stop the infringement, or it was clear from the outset that there was no likelihood of success at all to prevent the primary infringement.  The rightholders had to take reasonable steps, for example by hiring a private investigator or involving criminal prosecution authorities, to determine the identity and location of the primary infringer. In the case against "3dl.am", GEMA obtained an ex parte injunction against the operator of the website which could not be served at the address listed with the domain name registrar. GEMA then sued the host provider, but withdrew the complaint after it became clear that the host provider's address was false, too. According to the Court, GEMA should have made further enquiries and could not go after the access provider merely because the listed addresses of the primary infringers were false.