Suing online platforms for copyright infringements: the choice of court and law in the “Project Gutenberg” scenario

Abstract

This paper examines the current challenges in copyright enforcement online in a case from Germany, concerning the Project Gutenberg Literary Archive Foundation. Project Gutenberg was found liable for a breach of German copyright law and access to certain items was blocked by Germany. Gutenberg believes that the German court has no jurisdiction over the matter, but will comply until the issue is resolved on appeal. The paper illustrates possible alternatives for jurisdiction and applicable law in the EU. Current choice-of-court and choice-of-law rules are argued to be unsuitable for copyright claims for the online environment. Further, the paper focuses on the latest case law of the Court of Justice of the European Union (CJEU) concerning the liability of intermediaries and the safe harbour regime. “Hosting” safe harbour is supposed to be rejected when a platform is directly liable for copyright infringement jointly with its users. Furthermore, the paper will describe how the same conclusions would also apply to the Google Books Library Project. Both cases illustrate the current problems of territorial copyright laws in the online environment. The challenges in enforcing copyright online encourage copyright holders to seek protection within just one jurisdiction so that one single law can be applied. This weighs heavily when deciding upon a litigation strategy for copyright claims. The lessons learnt in this field show how cross-border enforcement of copyright online is tremendously unpredictable for defendants and unaffordable for copyright holders, and thus, benefits nobody.