GEMA v YouTube continued

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.

YouTube needs a Monitor

YouTube today lost a dispute before the Regional Court of Hamburg (LG Hamburg) against German collecting society GEMA (court press release here, and some media reports here, here, here). YouTube was held liable under the principle of 'Störerhaftung' ('disturbance liability' - secondary liability for contributing to someone else's breach of a third party's rights) and was issued with a permanent injunction to take down a number of songs in which GEMA administers the making available rights, and to ensure that the songs in question do not reappear on the platform in the future. 

At the preliminary stage of the proceedings in 2010, the court had refused to issue an injunction. The only reason for that was lack of urgency, though, so today's judgment is hardly surprising. What is interesting, however, is the rhetoric surrounding the case. Apparently, GEMA, YouTube and the Bundesverband Musikindustrie (Federal Association of the Music Industry) all expected great things from the judges.  According to an article in the FAZ (here), they were all hoping for clarification of the complex legal area of copyright, collecting societies and the Internet. What the court did do was point out that, upon being informed of a particular infringement, YouTube not only had to take down the file in question, but also use its Content-ID program and a word filter to monitor possible future reappearances of the respective song and take them down as well. Simply telling the copyright owners to do their own monitoring for repeat infringements did not suffice to avert liability.

To my mind, the judgment is fair enough, but Internet forum reactions to the judgment of course display the usual mix of cries over going back to the digital stone age, Internet censorship, content mafia, etc. Personally, while I admit to feeling a bit miffed when I want to watch a video on YouTube and cannot because 'this content is not available in your country', I have never had the impression that the ready availability of pop songs on YouTube is a precondition for the pursuit of happiness in general and freedom of speech and information in particular - but maybe I'm just weird that way...

In any case, it will be interesting to see whether YouTube and GEMA will resume negotiations now and finally come to a sensible agreement, with or without the help of the Arbitration Board under the Copyright Administration Act (see here), or continue their dispute through the instances for the next two to five years - after which they will probably need to go to the Arbitration Board anyway, which will then decide what a reasonable payment scheme would be. Intriguingly, GEMA does have per-click payment schemes agreed with streaming services Simfy and Deezer (see FAZ article here), which makes the assertions by YouTube/Google representatives that GEMA's claims are ludicrously overpriced a bit less easy to believe.

Preview Pictures II (Google Thumbnails)

In a judgment handed down yesterday, the Bundesgerichtshof (BGH) confirmed and expanded its position on Google thumbnails. In last year's 'Vorschaubilder' (preview pictures) decision (BGH I ZR 69/08, see Birgit's IPKat post here), the BGH held that Google's image search service does not infringe copyright in the pictures shown as 'thumbnails' in the search results. Since the copyright owner in that case put the pictures on the web and failed to take any steps to prevent them from appearing in Google's image search (which I understand is easy to do), she was deemed to have granted an implied licence for the pictures to be made available to the public by appearing in Google's image search results.

Now the court went a step further. The factual scenario was as follows: The copyright owner, a photographer, gave permission to someone else to make one of his photographs available on the Internet, presumably without requiring to take technical steps to prevent the photograph from appearing in Google's image search results (the written judgment is not available yet, and the press release is not entirely clear on this). Third parties then copied the photograph and made it available on their own websites. Google image search results then showed the photograph linking to the third parties' websites. The copyright owner complained and later sued Google, but to no avail.

The BGH considered that a search engine cannot distinguish pictures made available with the copyright owner's permission from those made available without the copyright owner's permission. It concluded that since the copyright owner gave someone permission to make his work available on the Internet, he is deemed to have given Google an implied licence to use the work in its image search service no matter what, even if the source of the preview picture is a website whose operator is in breach of copyright for making the work in question available.

Very kindly, though, the BGH pointed out that the copyright owner is free to sue those for copyright infringement who unlawfully made the images available on the Internet. Times were when one might have thought that would go without saying...

I agree that Google did not infringe copyright, but I confess to being confused nonetheless. If the third parties made the photograph available on their websites without permission and are thus infringing copyright, why is Google upon notification of the copyright owner not required under the principles of 'Störerhaftung' (secondary liability for contributing to someone else's breach of rights) to remove the photograph from its image search service as far as those websites are concerned? Surely it must be possible to exclude the third parties' websites from the image search while keeping the thumbnail from the website of the legitimate licensee?

Any comments by our dear readers would be very welcome.