Germany’s Federal Court of Justice (BGH) heard Kneschke v LAION on 3 September 2026, the first case at that level on whether building an AI training dataset is lawful text and data mining (TDM). The court gave no ruling. It signalled that the TDM exception applies in principle, raised open questions on how a machine-readable opt-out must look, and said some issues could be referred to the Court of Justice of the European Union (CJEU). For photographers, image libraries, publishers and AI developers in Europe, the LAION BGH TDM case will decide how much a rights reservation is really worth.
Update (October 2026): the BGH’s schedule now lists the pronouncement in case I ZR 281/25 for 17 December 2026 at 8:45. That date may bring a judgment or an order referring questions to the CJEU. BGH, Terminhinweise.
Key takeaways
- Both lower courts in Hamburg dismissed the photographer’s claim, holding that LAION’s downloads were covered by the general TDM exception and the scientific research exception.
- At the hearing, the BGH indicated that comparing images with their captions is TDM, but left open whether a natural-language opt-out in terms of use is enough.
- The court suggested the appeal court may have been generous in treating LAION as a research organisation despite possible links with private companies.
- A CJEU referral on Articles 3 and 4 of the EU copyright directive (DSM Directive) was described as possible, which would make the answer binding across the EU, Spain included.
What is Kneschke v LAION about?
According to the BGH press release of 20 May 2026, LAION is a non-profit association that publishes, free of charge, a dataset of 5.85 billion image-text pairs used to train generative AI. The dataset contains links and captions, not the images. To build it, LAION downloaded the images in the second half of 2021 and used software to check that each caption matched the picture. One was a preview of a photo by Robert Kneschke from a stock image site whose terms prohibited access by “automated programs, applets, bots or the like”.
Kneschke sued for an injunction. The Hamburg Regional Court dismissed the claim (judgment of 27 September 2024, 310 O 227/23) and the Hamburg Higher Regional Court upheld that result (judgment of 10 December 2025, 5 U 104/24), granting leave to appeal on a point of law.
What did the BGH signal at the LAION hearing?
The BGH has not published its own account of the hearing. The most detailed report is the press release issued on 3 September 2026 by Heidrich Rechtsanwälte, LAION’s counsel, so it should be read as one party’s summary. Profifoto and BVPA also reported a likely EU-level referral.
| Issue | Hamburg courts | BGH at the hearing (preliminary) |
|---|---|---|
| Is matching images with captions TDM (s. 44b UrhG)? | Yes: it yields information on correlations | Yes in principle: the selection work produces information on the image-caption relationship |
| Was the stock site’s opt-out effective (s. 44b(3) UrhG)? | No: the claimant did not prove the natural-language clause was machine-readable in 2021 | Open: whether natural language suffices and whether machine-readable also means machine-understandable |
| Research exception (s. 60d UrhG) | Yes: LAION is a research organisation; the open-source approach does not change that | More reserved: possible links with private companies may have been assessed too generously |
| CJEU referral | Not made | Possible, on Articles 3 and 4 of Directive (EU) 2019/790 |
On the opt-out, the report says the court took the view that programs must be able to understand a reservation for the system to work sensibly. That points away from treating a clause buried in website terms as sufficient, but the court did not commit to a final position.
Why the opt-out question matters beyond Germany
Article 4 of the DSM Directive allows TDM of lawfully accessible works unless the rights holder has reserved that use “in an appropriate manner, such as machine-readable means” for online content. Germany turned this into a stricter rule: for online works, a reservation is only effective if it is machine-readable. Spain’s Royal Decree-law 24/2021 (Article 67) keeps a wording closer to the directive: machine-readable means or other appropriate means.
The question also feeds into the EU AI Act. Under Article 53(1)(c), providers of general-purpose AI models must have a policy to identify and comply with Article 4(3) reservations, “including through state-of-the-art technologies”. If the CJEU defines what a valid reservation is, that definition will shape what model providers must detect and respect across the single market.
The research exception in Article 3 has no opt-out, but Article 2(1) excludes bodies whose results an undertaking with decisive influence can enjoy on a preferential basis. That is where the BGH seemed sceptical of the appeal court.
What this means for your business
- Rights holders: do not rely on terms of use alone. Add reservations in machine-readable form (robots.txt rules for AI crawlers, metadata, dedicated protocols) and keep dated evidence of when each was in place.
- Image libraries and publishers: review contributor agreements so that you can assert reservations and enforce them on behalf of authors.
- AI developers and dataset builders: document how you detect reservations at collection time, and do not assume a non-profit partner’s research status will protect downstream commercial use.
If you need your reservations, licences and training documentation aligned across several countries, our AI and digital assets team, which advises on TDM opt-outs and AI training rights, can review them before the BGH decides.
When to bring in an adviser
- Assuming an opt-out works because it is written down. In this case a clear prohibition in natural language did not, so far, stop the use.
- Not being able to prove the date. The Hamburg court put the burden on the rights holder to show the reservation was machine-readable when the copying happened.
- Ignoring contracts. Licences and copyright and software agreements often decide who can enforce, and against whom.
Frequently asked questions
Has the BGH ruled that LAION’s dataset is lawful?
No. The hearing on 3 September 2026 ended without a decision. The court gave preliminary views: matching images with captions is text and data mining in principle, but the validity of the opt-out and the research exception remain open, and a referral to the CJEU is possible. For now, the latest decisions are the Hamburg judgments in LAION’s favour, which are not final.
Is a “no bots” clause in website terms a valid TDM opt-out?
Not clearly. The Hamburg Higher Regional Court held that the claimant had not shown such a natural-language clause was machine-readable in 2021. The BGH questioned whether natural language is enough and suggested programs must be able to understand the reservation. Rights holders should combine terms of use with technical, machine-readable signals.
Would a CJEU ruling apply in Spain?
Yes. A preliminary ruling interprets Articles 3 and 4 of the DSM Directive, which Spain implemented in Article 67 of Royal Decree-law 24/2021. Spanish courts would have to read that provision in line with the CJEU’s answer, even though the Spanish wording differs from the German one.
Can IP Global Guard review our AI training or opt-out position?
Yes. We audit your reservations, licences and dataset documentation against EU and national rules, prepare contract clauses and coordinate qualified local counsel where enforcement is needed. You work with one point of contact across Europe, Latin America and Africa, and within the same group we also cover AI Act compliance.
How IP Global Guard can help you prepare for the ruling
IP Global Guard, the intellectual property line of META Channel Corporation Limited, handles copyright and AI matters across more than 25 jurisdictions in Europe, Latin America and Africa, and the wider META Channel group covers AI Act obligations.
Tell us which works or datasets you need to protect or use, and where they are published. We will check how your reservations would stand under German, Spanish and EU rules and what to fix first. Contact our team to review your opt-out position.
This article is general information, not legal advice, and reflects a hearing at which no decision was given.
Sources
- Bundesgerichtshof, press release 085/2026, hearing in I ZR 281/25 (20 May 2026)
- Heidrich Rechtsanwälte (counsel for LAION), press release after the BGH hearing (3 September 2026)
- Profifoto, BGH erwägt Gang zum EuGH (3 September 2026)
- BVPA, Verfahren im Fall LAION vor dem BGH (4 September 2026)
- Bundesgerichtshof, Terminhinweise (consulted 2 October 2026)
- Directive (EU) 2019/790, Articles 2, 3 and 4 (17 April 2019)
- BOE, Royal Decree-law 24/2021, Article 67 (3 November 2021)
- European Commission, AI Act Service Desk, Article 53
