[Guest post] German court: copyright infringement by ‘re-pin’ on Pinterest

IPKat readers interested in copyright are well aware of how, over the past several years, the right of communication to the public has gained a top spot in litigation and case law. Former GuestKat Mirko Brüß analyzes a very interesting recent German decision, which has tackled the application of such exclusive right in the context of linking within online image sharing service Pinterest.

Here's what Mirko writes:

German court: copyright infringement by ‘re-pin’ on Pinterest

by Mirko Brüß

A Kat pin

Readers of this blog will remember the CJEU decision Renckhoff (C-161/17), which was discussed by Eleonora here. In that case, the CJEU found that re-posting of protected content may be an infringement, when that re-posting includes an act of reproduction of the file in question. In GS Media (C-160/15, Katpost here) the CJEU ruled that placing a hyperlink to protected content may be an infringement, when the content linked to is freely accessible, but unlawfully so.

Now the Hamburg Regional Court (Landgericht Hamburg) had a chance to apply these precedents to an act of re-posting via a hyperlink on the social media/image sharing platform Pinterest. Pinterest allows users to upload images (“pins”) and share them with other users. Those users can “re-pin” such images, causing them to be shown on their own pinterest page (“board”).

The decision brings further clarity on the question if – or rather when – a link provider with a profit-making intention is liable for linking to infringing content (see earlier Katposts here and here).

Background

In the Hamburg case (case No. 310 O 352/20), a photographer specializing on architecture found one of his images “re-pinned” on Pinterest by a company that ran a real estate website, which it promoted via Pinterest. While the photographer had granted the architect of the pictured building a license for use on the architect’s website, this license did not include a right for usage on social media platforms or sub-licensing.

The photographer sued the real estate company, alleging a breach of his exclusive right of communication to the public. The real estate company defended its actions by claiming that it had not uploaded the image to Pinterest, but instead used the “re-pin”-function to show the image on its Pinterest board. It further alleged that it was not apparent that the image had been uploaded to Pinterest unlawfully, citing the site’s terms of service (TOS), according to which users shall only “pin” content for which they either are the sole and exclusive owner or have all rights, licenses and releases that are required to publish the content on Pinterest.

The Hamburg Court’s decision

The judges found the “re-pin” in question to be infringing the plaintiff’s right of communication to the public under § 19a Urheberrechtsgesetz (UrhG – the German equivalent of Art. 3(1) of the Copyright Directive).

A link Kat

To begin, they clarified that, due to the full harmonization of the right of communication to the public, the court would follow CJEU precedence. Therefore, the court looked for two cumulative criteria, namely an ‘act of communication’ of a work and the communication of that work to a ‘public’. Citing GS Media, the court quickly affirmed that by re-pinning the work to its board, the plaintiff had performed an ‘act of communication’, as the re-pin enabled visitors of Pinterest to access the image.

Second, the judges questioned whether this act of communication reached a ‘public’ in the sense of the CJEU’s jurisprudence. For a work to be communicated to a ‘public’, the communication must be aimed at an indeterminate and fairly large number of potential recipients. Furthermore, according to the Renckhoff decision, the protected work must be communicated using specific technical means, different from those previously used or, failing that, to a ‘new public’, that is to say, a public that was not already taken into account by the copyright holder when he authorised the initial communication to the public of his work.

The Hamburg judges found that a ‘public’ was reached by the “re-pin” in question, since the Pinterest board of the defendant addressed at least all Pinterest users and thus, an indeterminate and fairly large number of potential recipients.

Because the image in dispute had only been “re-pinned” by the defendant, it was clear that it had already been available on Pinterest, regardless of the defendant’s actions. The “re-pin” was therefore not seen as a communication via specific technical means, different from those previously used. But since the original upload to Pinterest happened without the plaintiff’s consent, the judges found that the “re-pin” reached a ‘new public’, as the plaintiff had not authorized the initial communication to the public.

In a last step, the court addressed the subjective element. Relying on GS Media and Filmspeler, the court found that hyperlinking is an (infringing) communication to the public when the person posting the link knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet. When the posting of hyperlinks is carried out for profit, the CJEU held that it can be expected that the person who posted such a link “carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder”.

The Hamburg judges question whether indeed, as GS Media seems to suggest at para 51, a person who posts a hyperlink for profit can always be expected to carry out the ‘necessary checks’. They wrote [my translation]:

However, this would be a contradiction to the CJEU’s statements in paragraph 34 of its decision, according to which the "further criteria" (which also include the profit-making motives) are only to be "taken into account", bearing in mind that they "may be present to widely varying degrees". Since very different factual, economic and legal prerequisites and possibilities for carrying out searches for infringements may exist within the framework of different business models, it would also not be compatible with the principle of equality before the law under Article 20 of the Charter of Fundamental Rights to assume a consistently uniform standard of duty of examination and due diligence for all commercial link posts solely on the basis of the quasi "lowest common denominator" of the intention to make a profit. Therefore, it must be possible for the party posting a link with the intention of making a profit to be able to rely on the fact that the linking was carried out within the framework of such a business model in which it could not reasonably be expected to carry out investigations that would have led to knowledge of the illegality of the linked content.

Applying this more dynamic standard, the court found that the defendant should reasonably have known that the “re-pin” affected a work that was available und Pinterest unlawfully. Since the defendant operated a real estate website and used the “re-pin” to promote its business, a check on the legality of the original “pin” would not have been unreasonable. The judges rejected the defendant’s argument that under Pinterest’s TOS, all users would only upload content legally, as they saw no set of experiences that users comply with such TOS. Ultimately, the defendant failed to rebut the assumption of knowledge. It would have been necessary for the defendant to at least have shown that it had made sufficient enquiries with the result that, according to due diligence, it could not be accused of ignorance of an actual lack of permission. However, no such enquiries were demonstrated in the proceedings.

Conclusion and outlook

This decision shows that the legal questions regarding hyperlinking to protected content have still not been fully answered. There will very likely be more cases about the “profit-making intention” and the threshold that has to be reached in order to rebut the assumption of knowledge that the content linked to is unlawful. The Hamburg judges took a reasonable approach to the latter issue by applying a dynamic standard that considers the nature of the business model, e.g. whether hyperlinks are posted automatically in large numbers or (as was the case here) “hand-picked”.

One (technical) aspect of Pinterest was not addressed in the decision, but gives “re-pins” a high conflict potential:

When a user uploads an image to the site, that is then “re-pinned” by another user, and the original uploader deletes his “pin”, the “re-pinned” image will remain visible on the second user’s board. This makes the scenario very similar to the Renckhoff case, where a re-post occurred after the file was copied to another server. There, the CJEU held (at para 31) that it “is clear that, even if the holder of the copyright holder decides no longer to communicate his work on the website on which it was initially communicated with his consent, that work would remain available on the website on which it had been newly posted. The Court has already held that the author of a work must be able to put an end to the exercise, by a third party, of rights of exploitation in digital format that he holds on that work, and to prohibit him from any future use in such a format, without having to submit beforehand to other formalities”. Applied to the specific technicalities of Pinterest, this could mean that even re-pins of content that was originally uploaded to Pinterest by the copyright owner could become infringing when the original “pin” is deleted, but the “re-pins” remain accessible on the site. Let’s see if (or rather when) this question will be answered by the courts.