LG Hamburg, Judgement v. 31.01.2007, Az 308 O 793/06,
Principles of Editing
The nearly unchanged takeover of press releases, unless otherwise
specified and is in breach of copyright without permission from the
copyright holder.
LAND COURT HAMBURG
On behalf of the people
Verdict
File number: 308 O 793/06
Delivered on: 31.01.2007
It:
I. The preliminary injunction of the Appeal of 11 December 2006 is confirmed.
II The defendant has to bear the additional costs.
Offence:
Subject of the proceeding is one for injunctive relief against the
respondent of the applicant because of the use of a text contribution
by the defendant as part of this web site.
The applicant is the owner of the firm based in S G, whose work
focuses on banking, stock exchange and investment law and lie to the
Internet at "www.k.de" an information service to the banking and
capital markets law operates.
The defendant's lawyer at the law firm B, which is also in the area
of investor protection activities and presents itself in the
Internet under the address "www.b.de".
Both firms - G and B - to inform their respective Internet sites
potential clients on legal issues in the field of capital market law.
The office of the applicant is for interested media including press
releases by the applicant as pdf files in a so-called "Press Room"
online, which is accessed via the link "Press" on the homepage of the
applicant. In this way, including the press release was "M-Asset
Management AG filed lawsuits against Swiss asset management" (see
Appendix A to this ruling) accessed on line. This press release
contained a report on several lawsuits against the M Asset Management
Inc., which wrote the salaried lawyer at the law firm G E. Witness E
transferred to the applicant any right to use this press release,
space, time and content, unlimited.
The defendant was among the items shown in Appendices B and C to this
decision public on the Internet.
The applicant considers essential parts of the article as shown in
Appendices B and C is a copy of its press release (see Appendix A).
Attorney with a letter of 9 November 2006, the applicant for the
defendant to submit a criminal act of omission and Undertaking to pay
Abmahnkosten in the amount of € 1005.40 to 14 November 2006 request
(see Appendix 9 ASt). In the ensuing period gave the defendant from
any penalty clause Declaration of Commitment (see Annexes 10 and ASt
ASt 11).
At the request of the applicant dated 8 December 2006, the court
received on 11 Issued in December 2006, the Chamber order of 11
December 2006 a preliminary injunction to the defendant was not
allowed to report the order means the § 890 ZPO, the press release "M
Wealth Management Ltd: lawsuits filed against Swiss asset management"
to use to use or allow, in particular, as in facilities ASt 7 and 8
(Appendices B and C correspond to this sentence) can be seen.
In contrast, the defendant used his protests.
The defendant claims that the witness G - was held on 13-14 -
Attorney at Law Firm B. November 2006, came calling with the witnesses
E in combination, to settle the matter. This has been discussed that
the defendant did not want to give injunctive undertaking in the
required form. Finally, it had been by telephone on 14 November 2006
it agreed that the matter was settled with the removal of the text
from the website of the defendant.
The defendant further claims that the disputed texts in it were not
for copies of the press release of the applicant. Even if this were
the case, the applicant was not injured in his rights, since what was
involved in a press release about a text contribution, and therefore
also to use at least partial reproduction is determined.
Furthermore, it is his, the defendant did not conduct unfair in the
sense of § 4 No. 9 UWG. In that regard, even questionable whether it
was unsolicited and sent in a free press release about a product or
service. Finally, it is also devoid of imitation on offense, as both
articles were drawn from publicly available information. Is, moreover,
his, the defendant, articles were not available because he had not
sold, but a universally accessible information was intended to
represent.
Furthermore, the defendant believes it lacks the existence of an
available ground, because he, the defendant, the articles already on
13 November 2006 had removed from his website.
The defendant contends that
the injunction of 11 Repeal December 2006.
The applicant requested
the injunction of 11 To confirm December 2006.
The applicant claims that the tools I was able to take on as an
employee of any commitments a unification agreement without the
consent of the applicant, which made witness e in the telephone
conversations with the witness G significantly and therefore insists
on the release of a criminal act of omission of commitment.
The applicant believes his release was a proprietary language work,
which had used the defendant unlawfully. The removal of the article
from the website was not sufficient to eliminate the risk of
repetition, but this had a reasonable penalty clause commitment
declaration can be made.
At the hearing (appeal hearing) of 31 January 2007, the Chamber
collected evidence through the questioning of witnesses G and E.
Because of the result of evidence from the record of the hearing
(appeal hearing) 31 January 2007 referred.
Is due to the property and the dispute, the rest of the parties'
pleadings and the annexes and protocol of the hearing (appeal hearing)
31 January 2007 referred.
Reasons:
After a hearing on the appeal, the injunction should be acknowledged.
The applicant may claim from the defendant the prohibition of use of
the disputed fee in accordance with § 97 para 1 sentence 1 of the
Copyright Act. The defendant has the proprietary rights of
exploitation of the applicant intervened illegally by the Internet has
kept the article as shown in Appendices B and C for retrieval.
I.
The applicant has against the defendant in a claim under § § 97 para
1 sentence 1, 15, 16, 19a, 2, para 1, No. 1 Copyright Act on the
prohibition of use of the press release "M Asset Management AG filed
lawsuits against Swiss asset management "(Appendix A), in particular,
as shown in Appendices B and C.
First The text in Appendix A is a work of language in the sense of §
2 para 1, No. 1 Copyright Act.
Language works are works, which expresses the means of expressing the
language of the work content. This may include in addition to literary
and scientific works are also on the practical and business life (cf.
Schricker / Loewenheim, Copyright, 2nd edition, § 2, para. 78).
Because of the required design height, the so-called "small coin" (cf.
GRUR is 1986, p. 739 f. (p. 740), IIC 1993, p. 34 f. (p. 36), IIC
1995, p. 581 f. (p. 582)), whose requirements at issue here satisfies
press release.
Second The use of the press release on the website of the defendant
engages in the copyright rights of the applicant. Since the defendant
has used substantial parts of the contribution of the applicant
without the grant of rights and kept on his website available for
everyone, he has violated the plaintiff's rights in illegally.
The applicant is the owner of the exclusive exploitation rights under
the Copyright Act § § 15 ff of the applicant representational
contribution (Appendix A). He is assisted after the sense of including
the exclusive right to reproduce and publicly accessible § § 16 and
19a of the Copyright Act.
The texts are not in dispute (Appendices B and C) on the homepage of
the defendant to 13 November 2006 have been downloaded, copied to
memory and thus made available to the public was.
The text of the applicant (Attachment A) is found in significant
parts in the text as shown in Appendices B and C again. It begins with
the title of the applicant representational press release "M - Asset
Management AG filed lawsuits against Swiss asset management" with the
subheading "Perhaps several thousand injured in Germany," which
submitted in Appendix B only in "M lawsuits against Swiss asset
management company several thousand injured.. " was changed. Then
follow some word identical, partly to passive modified text
acquisitions in a considerable length and number, the copied passages
are from a total of well over a quarter of the original text (cf.
Ekrutt, Joachim W., "obligation to pay for press", IIC 1975, p.
358-364, p. 362). On the whole, the text was not edited as an unfree -
marked release of the applicant, but others represented by integrating
their own quotes as his own - thus acquired. It is therefore not
subject to the limitations of § § 44a et seq Copyright Act.
Third The defendant attributable to the unlawful use of a recurrence
risk justifies the assumption (Fromm / Nordemann, Copyright Act, 9
Aufl,. § 97, § 22). For the avoidance of this conjecture would be in
addition to a suspension of use of the submission of a serious,
permanent, unconditional and sufficiently punitive injunction
undertaking was required (see GRUR 1990, 617, p. 624;. Möhring /
Nicolini / Lütje, Copyright Act, supra, § 97 . rn, 120, 125,.
Schricker / Wild, supra, § 97 para 42,.. Dreier / Schulze, supra, § 97
para 41, 42), as has been demanded unsuccessfully..
II
It has also passed a disposal ground. This follows from the principle
already re-offending, to eliminate them by making a pledge the
imitator, the defendant has not seen the causes. In addition, the
applicant has dealt with the matter expeditiously provided.
That the parties reach an agreement would come to the effect
concluded that the matter was with the removal of the contribution
from the website of the defendant - without making a criminal act of
omission undertaking by the defendant - should be done, did not result
in a taking of evidence by questioning the witness E, and G . The
relevant statements of the witnesses at the hearing of 31 January 2007
are contradictory. To consider specific evidence that the mere
representation of G for true witnesses are not discernible. Rather,
there are no clues as to why the witness E for the applicant's legal
position is well understood from the fax dated 14.11.2006 (Annex B, 3)
have virtually no service should give up. This result is borne by the
evidence - in relation to the occurrence of such an agreement between
the parties evidence contaminated - the defendant.
III.
The cost is based on § 91 paragraph 1 ZPO.
