No Passive Legitimation of the Access Provider for Claims of Omission and Removal

Facts

A AG (Plaintiff, Appellant) is a member of the Swiss Association against Piracy and aims to produce and distribute major films. B AG (Defendant, Respondent) is a leading access provider in Switzerland that offers internet access to customers.

The Plaintiff demanded that the Defendant block access to internet portals that illegally provide access to copyrighted films. The Defendant refused, prompting the Plaintiff to file a lawsuit.

The Commercial Court dismissed the lawsuit, as it did not consider the Defendant a participant in the copyright infringements. The Plaintiff then filed an appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court confirmed the decision of the Commercial Court. It stated that for the Defendant's liability as a participant in copyright infringements, two conditions must be met:

First, there must be a copyright infringement by a third party. However, the Federal Supreme Court concluded that the Defendant's users consume the films in question within the scope of the private use exception under Art. 19 para. 1 lit. a of the Swiss Copyright Act, and therefore do not commit a copyright infringement.

Secondly, the Defendant as an access provider would have to make a legally relevant contribution to the copyright infringement.…