In the second instance, the Higher Regional Court of Hamburg has confirmed that the offer of an ad blocker does not infringe the copyrights of website operators. The subject of the lawsuit was the “AdBlock Plus” offer by the manufacturer Eyeo, in which Axel Springer SE saw an infringement of its copyrights on several websites (Urt. v. 24.8.2023 – 5 U 20/22).
In the second instance, the Higher Regional Court of Hamburg has confirmed that the offer of an ad blocker does not infringe the copyrights of website operators. The subject of the lawsuit was the “AdBlock Plus” offer by the manufacturer Eyeo, in which Axel Springer SE saw an infringement of its copyrights on several websites.
How does “AdBlock Plus” work?
AdBlock Plus” is a plug-in which can be downloaded free of charge and which works with filter lists to prevent the display of website advertisements on the end devices of users. These country-specific so-called blacklists contain, among other things, specific server paths of certain online providers and their ad servers. In addition, they contain global file characteristics with which a majority of page contents can be blocked due to similarities in the path and file names. This results in the corresponding advertisement not being displayed to the user of the plug-in if the corresponding advertisement is not entered in a so-called whitelist. This acts as an opt-out from the blockade, so to speak.
Process history
In 2016, it happened that on one of Springer Verlag’s pages, certain editorial elements were not displayed in addition to advertising when AdBlock was switched on, because a filter command of the “Easylist Germany” filter list also hid this content. The publisher decided to take action against the plugin.
After losing a case brought before the Regional Court of Cologne based on competition law (which went all the way to the Federal Supreme Court in 2018), Axel Springer Verlag changed strategy. This time, copyright law was drawn upon and the courts in Hamburg were chosen as the arena.
The publishing house argued that the programming of its websites, due to the control elements contained therein, was a computer program protected by copyright law within the meaning of § 69a (1) of the German Copyright Code (UrhG), to which it had exclusive rights of use. The functioning of the adblocker led to unauthorised reproductions (§ 69c No. 1 UrhG) and adaptations (§ 69c No. 2 UrhG) of parts of this computer program. Axel Springer SE therefore asserted claims for injunctive relief and information in preparation for claims for damages before the Hamburg Regional Court.
After the plaintiff lost at first instance, it pursued its claim in the appeal proceedings. Like the Regional Court before it, the Hamburg Higher Regional Court dismissed the claims as unfounded.
Is there an object of protection at all?
The court stated that it was doubtful in principle whether the plaintiff had a right of use to a copyrighted object in the form of the website.
In addition to the characteristic as a computer program, the copyrightability of the programming of a website also requires an assessment of the extent to which the program created does not have a very simple technical design. Modern websites consist of a multitude of individual elements that are technically clearly delimited from each other, such as images, texts, graphics, videos and, if applicable, software contained in the HTML document, such as JavaScript applets or PHP code. The court was of the opinion that if such software components were used in the HTML document of the website, it could not be assumed that the website was a protectable computer program if these software components did not characterise the source code of the website. For this reason alone, an encroachment of programme protection by ad blocker software was often not given.
Furthermore, the protection was also doubtful because the website had been developed by third parties on the basis of JavaScripts and PHP passages, most of which did not originate from the plaintiff or the web designers it had commissioned, which had been created by third-party companies and had also been used in a large number of other websites.
Adblocker does not lead to prohibited copying or transformation
However, the court left these points open, since the “AdBlocker Plus” in any case did not lead to any unauthorised act of copying or transformation under § 69c UrhG.
Insofar as the HTML files and other elements are loaded into the user’s RAM when the web pages are called up, this is done with the consent of the plaintiff. Anyone who provides a website agrees that the corresponding programmes are retrieved from the operator’s servers and stored in the user’s main memory.
Website users who used an adblocker were therefore also entitled to store the files. In the context of simple consents, it was irrelevant whether any reservation existed with regard to deviations from the intended programme flow of the website (e.g. from § 69d (1) or § 44a UrhG).
Since the use of the AdBlocker merely influences the program flow by means of external commands without changing the substance of the program or producing a modified copy, in the opinion of the court there is also no prohibited program modification. The use therefore constituted an individual configuration of the programme and thus a use of the website for its intended purpose without consent within the meaning of § 69d (1) UrhG
Furthermore, nothing else resulted from the consideration that an unauthorised reproduction (§ 16 (1) UrhG) of the website design could exist under § 2 UrhG. The plaintiff had not met the requirements for the concrete demonstration of the protectability of the surface design of the website. In all cases it was a matter of a classic website design – albeit a well-crafted one – in which the individual elements (such as text, images, films, interactive elements, integrated third-party content, further links and advertising) were placed one below the other and, in addition, further links and advertising appeared primarily in the right-hand margin
Irrespective of this, the court held that a conceivable encroachment on the reproduction right was in any case justified on the basis of the plaintiff’s simple consent, which followed from the offer of the website. The possible redesign was also not prohibited, since, as follows from § 3, 23 (1) s. 1 UrhG, the mere production of an adaptation does not constitute an infringement of copyright
Outlook
The decision of the Higher Regional Court of Hamburg should be pleasing not only for providers of web blockers but also for many website users, so ad blockers can continue to be offered and used. Website operators and especially news providers will therefore continue to rely increasingly on payment models for self-financing
However, it is to be expected that the case will go into the third round, as the court has allowed an appeal to the Federal Supreme Court. The latter recently submitted two questions to the Court of Justice of the European Union on the protection and reworking of computer programs (we reported), the decision of which could justify a re-evaluation of the proceedings with a view to the requirement of uniform jurisdiction.