OLG Cologne: Attaching to third-party ASINs on Amazon can constitute copyright infringement

Cologne Higher Regional Court confirms judgment against Amazon seller for copyright infringement through attachments

A recent ruling by the Higher Regional Court of Cologne brings clarity regarding the liability of Amazon sellers for copyrighted content. The legal dispute centered on the question of whether a seller operating on Amazon.de's Marketplace can be held liable for an automated linking (appending to an existing ASIN) of copyrighted images without being able to influence the image selection beforehand.

The plaintiff, a designer and photographer, had discovered that her exclusive rights of use to two photos were being used by a large online retailer on Amazon. The defendant had automatically linked the images to an offer on Amazon.de. At first instance, the defendant was ordered to cease and desist by the Cologne Regional Court, but she appealed, arguing that the requirements of copyright law were not met.

No making available to the public, but unnamed right of communication to the public

The Cologne Higher Regional Court dismissed the appeal, but emphasized a change in the ruling. The court agreed that the act did not constitute making available to the public within the meaning of Section 19a UrhG, as the seller had no influence over which images were linked to the ASIN she used. Nevertheless, the court ruled that the act constituted an infringement of the unnamed right of the plaintiff to communicate to the public, Section 15 (2) UrhG, represents.

In § Section 15 (2) UrhG it says:

The author also has the exclusive right to publicly reproduce his work in an incorporeal form (right of communication to the public)

The court stated that the placement of the offer by the defendant by attaching it to a third-party offer, which automatically included a link to the plaintiff's images, could be considered a communication to the public. This was the case because the seller deliberately and purposefully provided third parties with access to the protected works by encouraging potential buyers to view the product page and thus also the plaintiff's photographs.

The court also rejected the defendant's objection that review obligations would come to nothing, as there were no options available to remove objectionable photos. It emphasized that the defendant could exert influence based on the general contractual relationship with Amazon.de and could take legal action if necessary.

OLG Cologne allows appeal to BGH

It is particularly noteworthy that the Senate allowed the appeal for the defendant, as the case is of fundamental importance and the further development of the law and the safeguarding of uniform case law require a decision by the appellate court. The legal question of whether a seller operating on Amazon.de's Marketplace is committing an act of use in the form of communication to the public if a link is automatically created with copyright-protected images therefore remains open until clarification by the highest court.

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