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.
Was there any discussion of the E-Commerce Directive safe harbour? Doesn't look like it from the (Google translation) of the Court's press release.
"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 . . . "
This seems to miss the entire point of the case. If 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.
I would be interested to know whether the Court referred somehow to the decisions of the CJEU in Scarlet or Netlog re filtering issues. Can anybody help?
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