(Apr. 24, 2019) On February 8, 2019, the Swiss Federal Supreme Court (Bundesgericht, BG) held that access providers are not obligated to block websites to stop copyright infringements, because the Court deemed their contributions to the infringements to be not legally relevant. (BG, Feb. 8, 2019, Docket No. 4A_433/2018, BG website (in German).)
Facts of the Case
The plaintiff produces, distributes, buys, and sells major motion pictures, and is a member of the Swiss Association to Combat Piracy (SAFE). The defendant provides internet access to clients all over Switzerland. Among Swiss access providers, it has the biggest market share. (BG para. A.a.)
On the internet, there are several portals that link to other websites, called “hosters,” where users are able to download or stream movies that other users have uploaded. The portals in the case at issue are written in Italian and target an Italian-speaking audience. They generate a profit by selling premium subscriptions to hosters or by selling advertisements. The plaintiff alleges that on these portals, thousands of movies are made illegally accessible, including movies for which the plaintiff holds exclusive licenses. The plaintiff therefore requested that the defendant block access to these portals. The defendant refused. (Id. para. A.b.)
On September 22, 2015, the plaintiff filed suit at the commercial court in the Canton of Bern to compel the defendant to block internet access to these websites through appropriate technical measures. The Commercial Court dismissed the case. The plaintiff therefore filed an appeal with the Federal Supreme Court. (Id. paras. B.b. & C.)
The Federal Supreme Court had to determine whether the defendant had participated in the copyright infringement of a third party and could therefore be held liable under article 50, para. 1 of the Code of Obligations. (Id. para. 2.2.1; Bundesgesetz betreffend die Ergänzung des Schweizerischen Zivilgesetzbuches (Fünfter Teil: Obligationenrecht) [Federal Act on the Amendment of the Swiss Civil Code (Part Five: The Code of Obligations)], Mar. 30, 1911, SYSTEMATISCHE RECHTSSAMMLUNG [SR] [SYSTEMATIC COLLECTION OF LAWS] 220, as amended, art. 50, para. 1, Federal Council website.) The relevant third parties are, on the one hand, the users that download or stream the movies and, on the other hand, the portals, hosters, and uploaders.
With regard to a copyright infringement by the users, the Court held that they did not commit a copyright infringement by downloading or streaming the movies because their behavior is covered by the private-use exception of the Swiss Copyright Act. (Urheberrechtsgesetz [URG] [Copyright Act] [CopA], Oct. 9, 1992, SR 231.1, as amended, art. 19, para. 1, Federal Council website.) The Court explained that the provision does not differentiate between legal and illegal private use and that the legislature refused to introduce a provision explicitly prohibiting illegal private use when it amended the Copyright Act in 2006/2007. (BG para. 2.2.2.) As there was no copyright infringement by the users, the defendant could not be held liable as a participant. (Id.)
With regard to a copyright infringement of the portals, hosters, and uploaders, the Court stated that it was undisputed between the parties that making the movies available without the permission of the rights holder constituted a copyright infringement. (Id. para. 2.2.3.) However, the Court held that the defendant did not make a legally relevant contribution to the copyright infringement. (Id. at 2.3.1.) The defendant only provides automated access to the internet as a whole and does not offer specific content to the users. Data transmission is initiated by the users. Neither the portals, hosters, or uploaders are clients of the defendant or have any other formal relationship with the defendant. The defendant, like other access providers, provides only the technical infrastructure to access the web from Switzerland. In the opinion of the Court, this is insufficient for holding the defendant liable as a participant because there is no concrete causal contribution. The Court concluded that it is up to the legislature to introduce such liability, which it has so far not done. (Id.)