GEMA vs. YouTube - YouTube's copyright obligations

The operator of a video portal such as "YouTube" is liable for copyright infringements by videos uploaded by users only if, knowing of the infringement, he violates certain duties of conduct and control. This was decided by the Hamburg Regional Court in a legal dispute between the collecting society GEMA and the video portal YouTube on 20 April 2012.

Only after a notice of copyright infringement does the portal operator have the duty to immediately block the video in question and to take appropriate measures within reasonable limits to prevent further infringements. However, there is no obligation to monitor all video clips already uploaded to the platform.

With its action, GEMA wanted the defendant operator of the Internet video portal "YouTube" to be prohibited from continuing to make twelve musical works for which GEMA holds the rights accessible via "YouTube" in Germany. The defendant refused an injunction because it was not liable for any copyright infringements. On the one hand, it merely made its video platform available to users and had neither created nor uploaded the videos in question itself. Secondly, it had taken all reasonable measures to prevent copyright infringements.

The competent copyright chamber ordered the defendant to cease and desist with regard to seven of the twelve musical works in dispute and dismissed the claim for the rest. Contrary to the plaintiff's argumentation, however, the court denied a so-called "perpetrator liability" of the defendant with regard to the copyright infringements and only assumed a so-called "Stoererhaftung" (Breach of Duty of Care). Since the defendant had neither uploaded the copyright-infringing videos itself nor made their contents its own, it was not liable as a perpetrator. However, it had contributed to the infringements by providing and operating the video platform. Because of this contribution, the defendant had duties of conduct and control. It had violated these and was therefore obliged to cease and desist from infringing the plaintiff's rights as "interferer".

Thus, to the extent of the conviction, the defendant had breached its duty to block the video clips concerned without delay after it had been informed by the plaintiff of the copyright infringements. With regard to the seven videos in question, blocking had only taken place a good one and a half months after the plaintiff had notified it. With such a period of time, it could no longer be said to have acted without delay.

With regard to the question of what further duties of review and control the defendant was subject to, the court pointed out the necessity of a proportionality test, in which the affected interests and legal valuations had to be weighed against each other. According to the court, the defendant should not be subject to requirements that would make its fundamentally permissible activities disproportionately difficult. However, it was reasonable to expect the defendant, after receiving a notice of copyright infringement, to use software to prevent future uploads that contained a recording that corresponded to the reported music recording. Suitable software for this purpose was available to the defendant in the form of the Content ID programme developed by it. However, the defendant had to use this programme itself and could not, as it had argued, leave the application to the rights owners. On the other hand, the defendant was not obliged to search its entire database for copyright infringements using the Content ID programme. The examination and control obligations of a person held liable as a "Stoerer" (interferer) always begin only after knowledge of a concrete infringement of rights. An obligation to take precautions therefore only applies for the future.

In order to reduce the number of infringements not detected by the defendant's software, the defendant was also obliged to install a word filter. The word filter was to filter out newly posted videos whose title contained both the title and the artist of the music recording complained of in a video. This was necessary because the Content ID programme only identified sound recordings that were identical to the stored reference recording. The software does not recognise deviating recordings (e.g. live performance instead of studio recording).

With regard to five of the twelve musical works named by the plaintiff, it is not apparent that further uploads occurred after the plaintiff informed the defendant of the infringements. Thus, it could not be established that the defendant's breach of duty had become the cause of further infringements, and accordingly the action was to be dismissed with respect to these musical works.

The judgement is not yet final. If an appeal is filed against the decision, the Hanseatic Higher Regional Court would have jurisdiction.

Source: Press release of the Hamburg Regional Court

Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law
E-mail: info@goldberg.de

 

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