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.
The problem with the supermarket analogy is that supermarkets buy a small number from recognisable, identifiable businesses who are there for profit. YouTube gets it's content from countless unidentifiable, individuals who are there to share knowledge. Should they really be treated in the same way? YouTube is more akin to a privatised public library than a supermarket in my opinion.
The victim of privacy argument is one that's often trotted out, but it's totally irrelevant, the offence being committed is a breach of privacy, not a breach of copyright, so copyright law is an inappropriate tool to solve the problem.
The musician trying to monetise streams is a really odd example, as it's a business model that has practically never worked (in fact the only really good way to monetise video streams is actually to let youtube stick adverts on them and share the revenue). Why should the law prop up a business model that doesn't work, when that business model was never envisaged by the framers of the law?
Long term , the big issue here is probably going to be flags of convenience. Decisions like the one made by the Hamburg judges simply drive internet businesses to more liberal jurisdictions. Paypal already pretends to be Luxembourg companies to escape proper regulation of their banking activities, surely it can't be long before a modern day Liberia emerges, offering a deregulated environment that Web companies can jump to in order to escape draconian copyright enforcement?
E.coli kills people. There should be laws to PREVENT that from happening. The sharing of a video and then swift removal after notification, does little, if any harm to a very small group of extremely powerful people. I don't see how they equate.
I would posit that the opposite is actually true. Where monitoring for e.coli produces a net benefit to society in a tit for tat that could end lives, monitoring for copyright infringement produces a net loss for society, through freedom of speech and expression abuses and by slowing down the pace or destroying innovative new technologies.
Thats why our Supreme Court applies the HIGHEST POSSIBLE STANDARD for prior restraint. It's not an issue as to what is convenient and what isn't. It's not even an issue as to whether YouTube could or should be taking more care. The possibility of copyright infringement does not cut it. The probability of copyright infringement does not cut it.
The reasonable aspects of this ruling still fall short. If YouTube is required to filter by keyword after it is notified (seems okay, right), it will likely be filtering parody and satire as well (oops). That's where it fails.
tl;dr : Protecting the integrity of our food supply is (only arguably) on par with protecting freedom of speech. It is not on par with protecting outdated business models.
@Andrew Robinson and Anonymous: I wasn't trying to say that YouTube is the same as a supermarket (a privatised public library would have to pay royalties to copyright owners for rental or lending, by the way), or that e.coli is the same as copyright infringement. I was simply trying to point out that there are duties of care involved in any kind of business. Different duties for different business models, obviously, but even in the e.coli example, forcing supermarkets to test every piece of food before selling it will either bankrupt them or make food so expensive that people will starve. There always needs to be a balancing of interests.
@Andrew Robinson: I believe the privacy argument is valid, since this was actually not a copyright case, but a breach of duty of care (Störerhaftung) case. Breach of duty of care is a secondary liability tool that covers a wide range of rights; property, copyright, privacy, to name but a few. One could of course argue that YouTube should have different duties of care in copyright cases than in privacy cases, but I suspect that this would not make matters any more straightforward.
I know people who generate advertising revenue from their travel blogs, so I don't see why the same should not work with music. I grant you that proceeds won't be much, but then again proceeds artists receive from YouTube won't be much either. It's the same business model as well, with the difference that in one case the business owner actually has the rights in the content and in the other they do not...
The German courts don't care where YouTube headquarters are based. As far as copyright and privacy rights are concerned, German law is applicable when it comes to content directed at a German audience. If push comes to shove and judgments are unenforceable because the defendant resides in some rogue jurisdiction, I suppose what would happen is that one could apply for a court order to block the respective content in Germany.
@Anonymous: YouTube would only be required to take down clearly infringing uses, plus probably notify the copyright owner of any borderline cases. I agree that parody and satire are a concern, but that problem exists no matter who does the monitoring (YouTube or the copyright owner), and there simply is no easy solution. For an interesting post on US law in this context, see http://www.plagiarismtoday.com/2007/09/04/why-fair-use-suffers-on-youtube/
Some interesting points there, Monkia. I think we agree that there needs to be a balancing of interests, but disagree on where the balancing point should be.
On privatised libraries, I would assume 'rental' royalties would still be paid by governments, as part of their funding for the arts. This is muddy political water for Pirates and non Pirates alike. Is there actually a rational explanation for why the government should compensate an author if I get an e-book from a library but not if I get exactly the same file from the Pirate Bay? I'm not a big fan of popularity-based funding for the arts, but if we are going to have it, why isn't it independent of delivery method?
"One could of course argue that YouTube should have different duties of care in copyright cases than in privacy cases"
...and I do!
"but I suspect that this would not make matters any more Straightforward."
..agreed. I think that the penalties should probably be aimed more at whoever let the genie out of the bottle, rather than trying to force third parties to stuff their particular bit of the genie back in, given that the reality of life today is that once something the public want to see has leaked, it can never really be stamped out. Censorship doesn't work anymore. As a society we do have to come to terms with that fact.
Travel blogs operate in a very different market, holidays are very big ticket items. Assuming a 1% referral fee, and the UK 2009 average holiday spend of £2,000 gives £20 turnover per sale. At an optimistic price of 1p per play, the musician needs to make 2,000 sales to get the same turnover, before considering the 2,000-fold increase in transaction costs!
Content blocking orders are something the internet can work round very easily. Even if the courts successfully play whack-a-mole with youtube.de, youtube.cc, and all other possible domain variations, and force all ISPs to filter access by dotted quad to all proxies (tough, given that new ones be set up by anyone in minutes) VNC, TOR and anonymisers would still function and provide users access. Fix all that, and users can dig out their modems and dial a foreign number for unrestricted access. If China and Syria can't stop access to western sites, it's a fair bet that the Hamburg Court can't either... and it would be political suicide for any politician to back them if they tried.
“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.”
E-coli is something that is objectively discernable: either the virus is there or it isn’t. Regardless, we would not expect the supermarket to pull the sprouts simply on the basis of a customer notification: an investigation would have to be conducted. The same should apply to copyright law. YouTube cannot be expected to pull content off its website simply because somebody who claims to be the rightholder considers it infringing. What about limitations and exceptions, fair use, fair dealing? What of the freedom to conduct business, secrecy of communications, user privacy and the freedom to impart and receive information? What about the prohibition on general monitoring obligations? The duties of care on which you seem to insist so much must also take such things into consideration and only a court is capable of making this kind of delicate balancing exercise.
“I agree that parody and satire are a concern, but that problem exists no matter who does the monitoring (YouTube or the copyright owner),”
That’s exactly why it shouldn’t be left to either one of them. It isn’t the job of intermediaries and certainly not of rightholders to enforce their claims at the expense of the rest of the population without prior judicial review. That’s what we have courts for - where, in fact, copyright-related disagreements have been settled for centuries.
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