The Munich Mirage: Why the “GEMA vs. OpenAI” Verdict is Less About AI and More About Geography

If you have been following the tech headlines over the last weeks, you might believe that Generative AI in Europe just hit a brick wall. The Regional Court of Munich I ruled against OpenAI in a lawsuit brought by the collecting society GEMA, declaring that training ChatGPT on song lyrics constitutes copyright infringement.

The headlines are screaming “Game Over.” The pro-copyright lobby is popping champagne. The tech world is bracing for a “nuclear option” of geoblocking.

But before we start writing the eulogy for European AI innovation, let’s take a deep breath and apply some intellectual honesty to what just happened.This verdict was not a cosmic shifting of the legal tides. It was the predictable result of a uniquely German forum shopping practice known as “the flying jurisdiction” (fliegender Gerichtsstand). To understand why OpenAI lost, you don’t need to be an expert in Large Language Models; you need to understand the mechanics of German judicial tourism.

The “Flying Jurisdiction”: A Travel Agent for Plaintiffs

In most reasonable legal systems, if you want to sue a company, you sue it where it is established. In Germany, thanks to a procedural quirk called the “Flying Jurisdiction”, the rules are different.

Under Section 32 of the German Code of Civil Procedure, a plaintiff can file a lawsuit anywhere a “tort” was committed. In the age of the internet, where a website (or an AI tool) is accessible everywhere, the “tort” is theoretically happening in every single German village simultaneously.

This turns the German legal map into an “all-you-can-eat” buffet for plaintiffs. If you are a rightsholder looking to sue a tech giant, you don’t just file a lawsuit; you go shopping. You look for the specific court that offers the specific “product” you want.

And make no mistake: German Regional Courts offer different products. They operate like competitive businesses, cultivating “brand identities” to attract high-profile litigation.

Munich: The “Rocket Docket” of Copyright

It is no coincidence that GEMA chose Munich for its battle against OpenAI.

The Regional Court of Munich I has aggressively positioned itself as the “Aggressor” in the European IP landscape. They have built a reputation on two pillars: speed and strictness.

Munich is famous for its “rocket docket”, moving cases to trial faster than almost anyone else. But more importantly, it is ideologically “pro-enforcement.” This is the court that invented the “Anti-Interim-License Injunction” (AILI) to stop defendants from even asking foreign courts for help. It is a venue where the default setting is often “ban first, ask questions later.”

When GEMA filed in Munich, the outcome was practically baked into the venue selection. The court’s reasoning—that an AI model “memorizing” lyrics is identical to a human copying a file—is consistent with Munich’s historical hardline stance. It is a feature, not a bug, of that specific jurisdiction.

The German Judicial Menu: An Ironic Top 5 of “Magnet Courts”

To illustrate just how outcome-determinative this “forum shopping” is, we have compiled an ironic guide to Germany’s “Magnet Courts.” If Munich is the strict headmaster, the others play very different roles.

1. The Terminator: Munich Regional Court I

• The Vibe: “Compliance is mandatory.”
• Best For: Plaintiffs who want a preliminary injunction by lunch.
• The Specialty: Ignoring technical nuance in favor of “protecting the creator.” If you want to shut down a smartphone manufacturer or an AI lab, you book a ticket to Bavaria.

2. The Wild Card: Hamburg Regional Court

• The Vibe: “It’s complicated.”
• The Specialty: Historically terrifying for platforms (famous for its strict “link liability” ruling), Hamburg recently threw a curveball. In the Kneschke v. LAION case, they ruled in favor of an AI dataset creator, accepting the argument that data scraping is “scientific research.” If GEMA had sued in Hamburg, we might be reading a very different headline today.

3. The Decorator: Cologne Regional Court

• The Vibe: “Everything is art, and everything costs money.”
• The Specialty: Famous for the “Photo Wallpaper” cases, where they ruled that if you post a selfie in a hotel room with wallpaper, you are infringing the wallpaper designer’s copyright. It sounds like a parody, but Cologne takes the “monetization of everything” very seriously.

4. The Graveyard: Berlin Regional Court

• The Vibe: “Are we sure this is even legal?”
• The Specialty: A cautionary tale for plaintiffs. When publishers tried to sue Google here years ago, the Berlin court didn’t just say no; they questioned the validity of the entire law, leading to a years-long disaster for the plaintiffs. You go to Berlin if you enjoy bureaucratic existentialism.

5. The Ghost: Mannheim/Düsseldorf

• The Vibe: “Strictly Business.”
• The Specialty: Usually obsessed with patents, but often dragged into the mix. They are efficient, technocratic, and generally less theatrical than their Munich counterparts.

The Appeal Reality: Why You Shouldn’t Panic

Here is the data point that the alarmist headlines are missing: The Reversal Rate.

The “notoriety” of courts like Munich comes with a catch. Because they often take extreme, plaintiff-friendly positions to attract cases, their rulings are frequently overturned by higher courts.

Empirical observations of the German IP system reveal a massive “pendulum effect.” Aggressive first-instance judgments often face a buzzsaw when they reach the Federal Court of Justice (BGH) or get referred to the Court of Justice of the European Union (CJEU).

In patent nullity cases, for example, reversal or modification rates can hover near 80%. Even in general IP litigation from “magnet courts,” it is estimated that a third of these aggressive judgments are overturned on appeal.

Remember the “Wallpaper” insanity from Cologne? The Federal Court of Justice recently stepped in and effectively told them to get a grip, overturning those rulings and restoring common sense.

Germany’s first-instance rulings make headlines. Its appellate rulings make the law. This matters enormously for interpreting the Munich decision.

The “Double Jeopardy” of Tech

This leaves companies like AI companies and their users in a state of “Double Jeopardy.”

First, they face the immediate operational threat of the “Flying Jurisdiction”—injunctions from Munich that force them to scramble. But secondly, they face years of uncertainty while waiting for the “adults in the room” (the appellate courts) to potentially clean up the mess.

The Munich verdict against OpenAI is not the final word on AI copyright in Europe. It is the opening act of a theater performance that has been pre-booked by the plaintiffs.

Conclusion: Don’t Mistake Theater for Law

The GEMA vs. OpenAI ruling is a significant moment, but it is not a definitive one. It is a product of judicial arbitrage: the ability to exploit the heterogeneity of the German legal system to maximize leverage.

Rightsholders are using Munich to create a narrative of “illegal AI.” But until the Federal Court of Justice or the CJEU weighs in—likely years from now—we are merely watching a local skirmish in a much larger war.

So, when you see the headlines about Europe banning AI training, remember: This isn’t necessarily European Law speaking. It’s just Munich being Munich. It is simply the loudest opening statement in a system that self-corrects over time.

Written by Caroline De Cock, LL.M., Head of Research