The GEMA v YouTube case is making quite extraordinary waves. Among other things, the GEMA website was hacked on Friday and has been inaccessible on and off since. The notion that GEMA and the Hamburg judges have got it all wrong appears to be shared by many. In response to my admittedly slightly provocative quip that I did not think anyone actually needed access to any particular YouTube video to lead a happy life, one of our readers has accused me of missing the entire point of the case, arguing that
"[i]f service providers are required to monitor user activity in this manner, they never would go into business in the first place. YouTube's Content-ID program is supererogatory in the extreme and wasn't available when it started. With this requirement there would be no Google, YouTube, Ebay, Facebook or any other innovative service that involved user generated postings."
This raises an interesting point. I fully agree that the services mentioned might not have been developed if they had had to comply with the standards set by the Hamburg judges in GEMA v YouTube. However, I am pretty sure many industries would never have developed if they had had to comply with today's health and safety standards, but that does not necessarily mean that current health and safety standards should be abolished.
The secondary liability concept of "Störerhaftung" that the court applied asks whether there is a duty of care in any particular situation and, provided there is, if that duty has been breached. A duty of care is only assumed to the extent that it can be reasonably expected. Something that is impossible cannot be expected; something that is economically unfeasible can only be expected in extreme circumstances.
For instance, it would be excessive to expect supermarkets to have all their vegetables tested for e.coli before selling them. Similarly, YouTube is not expected to monitor all videos before they are uploaded. Once a supermarket has been informed that its sprouts are contaminated with e.coli, though, it can reasonably be expected to destroy those sprouts. If possible, it must also make sure that its supplier's sprouts are e.coli-free before selling any more of that particular supplier's sprouts. Similarly, upon being informed by the right holder of clearly infringing content, YouTube is expected to take down that content immediately (and not after more than six weeks, as happened in the case at hand). It is also expected to use its Content ID program and word filters to monitor for future identical infringements, since that is both technically possible and economically feasible these days. It does not matter if something was technically impossible or economically unfeasible ten years ago as long as it can be done today.
I know GEMA is one of the pet hates of many people, and there are certainly issues, for example whether the system for distributing royalties is fair, that are worth addressing. Before leading a revolution in the name of Internet freedom, though, maybe people should ask whether their reaction to the judgment would be same if the claimant had not been GEMA but a musician who is trying to generate advertising revenue from streaming her songs on her own website and therefore does not want them to be available on YouTube. Still not convinced? How about the victim of a breach of privacy who wants to make sure that the video showing them in some intimate act or as the victim of a violent crime does not crop up again and again?
YouTube is certainly free to provide the service it does, but the thing about freedom is that it comes with responsibilities attached. To my mind, the Hamburg judges have struck the right balance between the interests of the proprietors of YouTube in running their business and the interests of right holders to protect their rights.