GEMA and others against YouTube - The dispute continues

The Hamburg Regional Court dismissed the application by GEMA and other collecting societies for an interim injunction against YouTube for lack of urgency.

The applicants sought interim relief in relation to the territory of the Federal Republic of Germany to prohibit YouTube from making a total of 75 compositions from the music repertoire claimed by the applicants as collecting societies publicly available on the internet via the service "You Tube". The background to this is that YouTube is currently not paying the applicants any licences for making the videos containing, inter alia, the compositions in dispute publicly accessible, following the expiry of a licence agreement valid until 31 March 2009, and negotiations in this regard have so far been fruitless.

The District Court refused to issue an interim injunction on the grounds that the applicants had not made a sufficiently credible case for the urgency of a provisional settlement. Unlike in competition law disputes, such urgency is not presumed in the case of a copyright claim. Rather, the circumstances justifying urgency must be presented and made credible by the applicant. This was not successful here. It did not appear to the board with the necessary probability that the applicants had only learned of the specific infringements a few weeks before filing the application for a preliminary injunction. The applicants had known for a long time that musical compositions were being used on the service "You Tube". The present preliminary injunction proceedings were also prepared over a period of several months.

Since the urgency required for the issuance of an interim injunction was not present, the court did not decide on the question of whether the applicants could in principle demand that YouTube refrain from publishing the videos with the music in question. This question would have to be clarified in substantive proceedings if the parties do not succeed in reaching an out-of-court settlement. However, the court pointed out that there was much to suggest that the applicants were in principle entitled to injunctive relief under copyright law against the defendant. It was obvious that the defendant had not fulfilled reasonable obligations to check or had not taken measures to prevent further infringements.

The applicants may appeal against the judgment to the Hanseatic Higher Regional Court within one month of its service.

Legal background:
The injunction proceedings are summary proceedings and serve to provisionally secure a claim. Abbreviated deadlines and special, simplified rules for taking evidence apply. The prerequisite for issuing a preliminary injunction is that there must be a claim for injunctive relief and a reason for the injunction. This means that, on the one hand, the applicant must be able to demand that the defendant do, tolerate or refrain from a certain action. Secondly, the particular urgency must require a provisional court ruling. If the latter requirement is not met, the plaintiff must assert his claim by "normal" legal action.

Source: Press release of the Hamburg Regional Court

Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL. M. (Information Law)
Specialist attorney for information technology law (IT law)
E-mail: Info@goldberg.de

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