On August 30, 2025 our partner Dr. Truiken Heydn gave an interview on Deutschlandfunk Kultur radio in the program “Breitband” about the German Federal Court of Justice ruling of July 31, 2025, on the copyright infringement of ad blockers. You find the interview here (sorry, this one is in German language):
New BGH Case Law on the Modification of Computer Programs
In two rulings delivered on July 31, 2025, the First Civil Senate of the German Federal Court of Justice (Bundesgerichtshof – BGH), responsible for copyright law, addressed the issue of modifying computer programs.
Ad‑blocker (Judgment of July 31, 2025, File No. I ZR 131/23 – Werbeblocker IV)
An operator of several online portals contested against the distributor of a browser plug‑in designed to suppress advertisements on websites.
How the ad‑blocker works
The ad‑blocker interferes with data structures generated by the browser in a user’s RAM after fetching and loading the HTML file. It alters the object structure (the DOM node tree) as well as the formatting structures (CSSOM) used by the website, preventing elements recognized as advertisements from appearing on the user’s screen. This happens either by preventing ad content from being retrieved from ad servers or by loading it into memory without displaying it.
Copyright infringement through interference with protected code
The BGH held that the exclusive right to modify a computer program under § 69c No. 2 first sentence of the German Copyright Act (UrhG) and the exclusive reproduction right under § 69c No. 1 first sentence UrhG may be infringed if the browser and its engines are not controlled via object code, but by bytecode from which the browser’s virtual machines generate object code. That bytecode—or the code generated from it—may be protected as a computer program, and an ad‑blocker that alters this code in the course of reproduction may infringe the exclusive right associated with it.
Decision
The BGH referred the case back to the appellate court for a new hearing and decision, so that it can clarify which part of the website (bytecode or object code) is affected, whether it is protected by copyright, and under what conditions the interference may be justified.
Cheat Software (Judgment of July 31, 2025, File No. I ZR 157/21 – Action Replay II)
The distributor of PlayStation consoles and associated games challenged the “Action Replay PSP” software, which enables users to manipulate original games to bypass restrictions such as the limitation of the use of “boosters.”
How the cheat software works
Using “Action Replay PSP” requires connecting the PSP to a PC and inserting a Memory Stick. After rebooting the PSP, users can access an additional menu labeled “Action Replay” to deactivate in‑game limitations. The software runs concurrently with the game software and does not modify the object or source code or the internal structure of the game. Instead, during gameplay, it alters the values of variables that the game software stored in the PSP’s RAM and uses during execution. As a result, the game runs based on these modified variable values.
No copyright infringement without interference with protected code
The BGH held that the exclusive rights under § 69c No. 2 and § 69c No. 1 UrhG are not infringed when the cheat software does not alter the program data of the object or source code of the game, but only other elements such as variable data created in RAM during program execution. If only the program flow is influenced in this way, it does not constitute an infringement of the software copyright.
Significance of the Decisions
On the one hand, an ad‑blocker may infringe website copyright, even though it merely prevents certain content from being displayed. On the other hand, software that modifies the intended program flow of a video game is classified as non‑infringing. At first glance, this may appear surprising.
Criterion: Interference with code
The BGH draws a legal distinction based on whether the code is interfered with. The author of a computer program creates the code, and only if this code is modified is their right violated. In the Action Replay II case, the BGH found no modification to code, while in the Werbeblocker IV case, it deemed that not only the author-created source and object code may be protected, but also a bytecode running on a virtual machine that translates it into machine code.
As an aside: Programming languages without object code and platform‑independent programs
For instance, Java programs are not directly compiled into object code. Instead, they are compiled into bytecode executed on a virtual machine (part of the Java runtime environment), which translates the bytecode just in time into machine code for execution. This enables platform independence, provided the appropriate runtime environment is installed.
Extension to code not directly created by the author
Interestingly, the BGH includes code under copyright protection that was not directly written by the program author, but indirectly generated from code created by the author.
Application to AI‑created computer programs?
Application to AI‑created computer programs?
This development may be relevant for future considerations. It suggests that programs created using artificial intelligence might also be protected by copyright. This raises further questions: Who should be regarded as the author—the one who programmed the AI model, programmed the AI system, trained the AI system, or created the training data?
In 2016, the EU Commission’s ODR platform for out-of-court dispute resolution was created. Since then, online companies have been required to provide a link to this platform on their websites. This resulted in a massive wave of warning letters. Now the good news: the platform – and with it the obligation to link to it – is being abolished. What does this mean for you?
Background
The ODR platform and the underlying ODR Regulation (Regulation 524/2013) are one of the pillars of an out-of-court dispute resolution system. The second pillar is the ADR Directive (Directive 2013/11/EU), which was promulgated on the same day.
The directive lays the groundwork for EU member states to establish national arbitration bodies that consumers can turn to when they have problems with a company.
These arbitration bodies are supposed to resolve disputes quickly, efficiently and cost-effectively (for the consumer), thus making court proceedings unnecessary. This directive remains in place.
The ODR platform is intended to offer consumers the opportunity to turn to an arbitration board in the event of cross-border problems. The ODR platform itself did not carry out any arbitration. It merely forwarded incoming complaints to the respective company or the respective competent national arbitration board.
Only 2% of all complaints submitted via the platform were even forwarded to a national conciliation body – which means 200 complaints per year.
The usefulness of this platform has been criticized from the outset.
Abolition of the ODR platform on July 20, 2025
Now the ODR platform will be abolished on July 20, 2025, as regulated by Regulation 2024/3228, published on December 30, 2024. In connection with this, the obligation for online businesses to link to this platform will also be eliminated.
Complaints will no longer be accepted after March 20, 2025
Article 2 (2) of Regulation 2024/3228 stipulates that complaints will no longer be accepted on the ODR platform after March 20, 2025.
From that date onwards, consumers will no longer be able to submit complaints.
The information requirement regarding the ODR platform will remain in place until July 20, 2025
However, online businesses will still be required to provide information regarding the ODR platform until July 20, 2025. However, this information requirement will no longer provide any added value after March 20, as consumers will no longer be able to use the platform after that date.
Depending on how companies currently fulfill their information obligation, this notice would have to be adapted. If the notice explicitly states that consumers can use the ODR platform to file a complaint, this information would be incorrect as of March 20.
As of July 20, 2025, the reference to the ODR platform should be removed from the website and from the terms and conditions (and all other places).
Note on participation in conciliation proceedings must continue to be given!
The information on the OS platform is to be distinguished from the information on whether the company is willing or obliged to participate in out-of-court dispute resolution in Germany. This information requirement arises from Section 36 German Verbraucherstreitbeilegungsgesetz (VSBG) and the ADR Directive mentioned above and remains in force!
Currently, the imprint and terms and conditions often contain texts like this on German Websites:
We are not willing or obliged to participate in dispute resolution proceedings before a consumer arbitration board.”
The first sentence must therefore be removed from July 20, 2025. However, the second sentence must remain! However, changes are also pending here. The Federal Ministry of Justice has had a draft bill [only in German] since October 2024, according to which this second information requirement is also to be largely abolished. However, due to the early parliamentary elections, it is questionable whether this change will still come about.
Consider terminating cease-and-desist declarations
In the early years of the ODR platform, there were numerous written warnings on this topic, for example because the platform was not referred to at all or the link was not clickable. As a result of these written warnings, many companies issued a cease-and-desist declaration. This obliges them – to put it simply – to link to the platform for all time.
Despite the abolition of the platform, the obligation under the cease-and-desist declaration continues to apply, as this is a contract.
Companies that have issued a cease-and-desist declaration on the subject should have it checked whether it can be terminated.
Conclusion
It is to be welcomed that the ODR platform is finally being abolished. This results in the following to-do list for online companies:
- Adjusting the imprint and terms and conditions
- Checking cease-and-desist declarations
If you have issued a cease-and-desist declaration, it is essential to check whether it can be terminated. We would be happy to support you in implementing these tasks.
