Wednesday 1 September 2010

Isn't it urgent now I've hesitated for so long?

Ordinary people may be forgiven for believing that things usually get more urgent the longer you put them off. Anyone who considers filing a motion for a preliminary injunction in Germany should be warned that the law takes quite a different view of the matter.

German music collecting society GEMA and eight other collecting societies learned that lesson the hard way a couple of days ago, when the Regional Court of Hamburg (Landgericht Hamburg) dismissed their motion for a PI against YouTube (judgment of 27 August 2010, file reference 310 O 197/10).

In April 2009, GEMA and YouTube started negotiations concerning a licensing agreement for the GEMA music repertoire. Negotiations were broken off in May 2010 because the parties had somewhat different opinions as to what would constitute a reasonable licensing fee. GEMA and the other collecting societies then applied for a PI against YouTube to have YouTube enjoined to remove 600 music videos from its video platform. Under German law, however, you can only obtain a PI if the matter is urgent. After all, the rationale behind preliminary proceedings is to either "freeze" the status quo or create an interim situation in order to secure your rights and prevent matters from getting worse.

So as a general rule, one should apply for a PI within a couple of weeks - a couple of weeks since what happened, though? When the negotiations failed, the collecting societies were very quick indeed to file the PI motion. However, the crucial point was that they had been aware of the alleged infringements since April 2009 at the latest. It did not matter that GEMA and YouTube had been in negotiations. Therefore, the court dismissed the motion for lack of urgency.

I agree. If you can negotiate for a year and do not mind the allegedly infringing videos being available during the time, the matter can arguably not be so very pressing. If you've waited that long, surely you can wait a bit longer and file for ordinary proceedings... Yet not all was bad for GEMA et al. The judges let slip that they believe a lot militates for the collecting societies having a valid copyright claim against YouTube to cease and desist from making the videos in question available to the public.

Spokesman for YouTube's parent company Google, Kay Oberbeck, said that YouTube is willing to share the proceeds it makes from music with the rightholders, and has invited the collecting societies to return to the negotiating table. They have yet to decide whether to appeal the decision, concentrate on the main proceedings instead, or resume negotiations (or maybe all three).

I agree they should try and come to an amicable solution. Not just because the logos look so nice together (although they do), but mainly because while a lengthy court battle may very well establish that YouTube has a duty to take down infringing videos, it is not likely to do much for musicians' and composers' bank accounts.

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