Share Button is not a free pass for the use of third-party works

The use of social media plugins allows users to quickly and easily provide third-party internet content to their own contacts, especially with Facebook's share button and comparable functions on other platforms. The opportunity deliberately given by the author of certain content could lead to the assumption that they consent to the free use of their work, such as an article, photograph or video. This is only partially correct, as the Regional Court (LG) Frankfurt/Main establishes in an appellate judgment.

The author of a post entitled "The Myth of the Skilled Labour Shortage" had published it on a website and given readers the opportunity, through the integration of social media plugins, to distribute the article via the share function (share button). A user apparently understood this to mean that they were thereby granted permission to freely use the entire text even without activating the share button. As a result, they copied the article and published it on their Facebook profile in such a way that the original source was neither recognisable nor linked. The author of the article contested this with an action for cessation. After the dispute in the main proceedings was settled due to the issuing of a cessation declaration, the user of the article was ordered to bear the costs, against which they appealed to the LG Frankfurt/Main.

The court's decision

The appellate court confirmed the decision of the Local Court (AG) with judgment of 17.07.2014 (Az. 2-03 S 2/14). According to the court's reasoning, the use of a work protected by copyright presupposes that the author has granted corresponding rights. Due to the tendency of copyright powers to remain with their holder to the greatest possible extent, this presupposes, however, a clearly declared or recognisable will that the work is used by third parties in a specific manner. The provision of a share button for sharing certain content on the relevant social media platforms consequently contains an unambiguous declared will that this option is made use of and the relevant content is further distributed. However, the will thus ascertainable is clearly limited by the particular features of the share function. The use of the share button does indeed lead to a certain use of the content on the user's profile. However, this is always associated with a reference to the original source. Insofar as it concerns texts, only an introductory text is adopted in conjunction with a link to the source.

This cannot be reconciled with a free adoption of the third-party content in its entirety, because this type of use far exceeds it quantitatively. In the court's view, the use of the article in a form detached from the original source and the author therefore took place without the author's consent and infringes their rights. This is not changed by the theoretical possibility of adopting the entire post instead of merely an announcement text in combination with a link to the source, because this contradicts general commercial practice and the principle that the granted rights of use only extend as far as is required for the presupposed purpose (purpose limitation rule).

Conclusion

The judgment demonstrates that when distributing third-party content, it is always necessary to pay close attention to what the author of the source actually consents to. In no circumstances can it be assumed that content once published is subject to free use by everyone. The widespread assumption that one merely has to somehow cite the source is also wrong. The use of third-party works presupposes an express or implied consent of the rights holder. The naming of the author is then mandatory and should not be confused with a citation. Neither replaces the author's consent.