Gerlach vs. DVU

Description

Case summary

BACKROUND

In summer of 2010, the applicant took a picture of the German politician Thilo Sarrazin at a public event and published it online under the Creative Commons license BY SA 3.0 Unported. Later the NPD, a German political party used the picture on their website without the plaintiff's name, the license notice or any other requirement of the license. The applicant sent a notice and takedown letter to which the party didn't react. Subsequently the applicant sought preliminary injunction before the Disctrict Court of Berlin against the unauthorized publication of the picture.

RESULT

The District Court of Berlin granted the injunction because the applicant had successfully established prima-facie evidence of authorship, of the licensing and of the breach of the license, thus triggering the right to injunction following from s. 97 ss. 1 in combination with s. 19a Urheberrechtsgesetz (German copyright code).

TAKE AWAY

It needs to be noted that there are two levels of evidence under German procedural law: a) probably true, b) proven. For a preliminary injunction one only needs to establish the lesser one a).

Nevertheless, the basic message of this ruling is that the fallback to regular copyright interdiction actually works, because a breach of the license terms leaves the user with no licensed right to use the work.

This is the first German ruling where from the court's point of view it seems to go without saying that the licensing via notice etc. is valid and thus a CC license has an effect. Even more importantly the ruling suggests - as an argumentum e contrario - that honouring the license terms would have made the use legal, although that was not at the core of the case.

Decision in German: http://www.ifross.org/Fremdartikel/LG%20Berlin%20CC-Lizenz.pdf Decision in English (non-official translation): http://de.creativecommons.org/wp-content/uploads/2011/09/LG-Berlin-Schindler-vs-NPD.pdf