GEMA vs YouTube - what the Hamburg court really said...

Further to Tara's post on the GEMA vs. YouTube case (see here), please find below this Kat’s summary of the court’s press release of 20 April 2012 (which can be retrieved here) which should make matters much clearer, provided you can get your head around the German legal principle of “disturber/disturbance liability”.

In a widely publicised case brought by German collecting society GEMA against YouTube, the Regional Court of Hamburg (Landgericht Hamburg) on Friday decided that the owners of a video portal, such as YouTube, will only liable for copyright infringing videos uploaded by its users where the portal does not follow certain control and behavioural duties. Only after the portal owners have been alerted of the copyright infringement will the duty to block the video without delay and to commit to measures that are suitable to prevent further right infringements. There was, however, no duty for YouTube to control and check all videos that had already been uploaded to the platform.

With its claim GEMA had tried to achieve that the defendant operator of the YouTube portal be banned from making 12 musical works (for which GEMA was exercising rights) available via YouTube in Germany. The defendant argued that it was not liable for potential copyright infringements: it only provided platform for its users and had neither made the videos in questions nor uploaded them. Furthermore, it had taken all reasonable measures to prevent copyright infringements.

The Landgericht’s copyright chamber agreed with the claimant in seven of the twelve cases. The court disagreed with defendant and held that YouTube was not liable via the legal instrument of “Täterhaftung“, that is by actually having committed the infringing acts itself, but could only be held liable via the principle of disturber liability (“Störerhaftung”). The defendant had neither uploaded the videos, nor appropriated the content of the videos and thus was not itself
directly liable as “offender” (“Täter”) .

However, by having provided its video platform, the defendant had contributed to the infringing acts. These contributing acts resulted in the defendant having certain behavioural– and control duties and it was thus liable to stop the infringing acts as “disturber”. In particular, the defendant did not fulfil its duty to block the videos in question without delay after the claimant had informed it about the copyright infringements. In case of the seven videos YouTube only blocked access to the videos seven months after GEMA’s alert. Such a period of time did not qualify as “without delay”, the judges found.

As regards to the defendant’s further behavioural and control duties the court stressed that there was the need to conduct a test of proportionality, by which the respective interests and rights had to be balanced against each other. The court stressed that there should be no duties imposed on the defendant that would make its per se lawful business disproportionately difficult. However, the judges found that it was reasonable (“zumutbar”) after having been alerted of a copyright infringing act to to prevent future uploads of the same musical work (the same recording) by using filter software. Such software was already available to the defendant in the form of its Content-ID software, which the defendant had developed itself. The court held that the defendants had to use the software itself and could not leave this to its users, as the defendant had argued.

The judges made also clear that the defendant had no duty to check all the data/information copyright infringements that was already uploaded and available on YouTube. Disturber liability, the judges explained, only comes into play once the defendant had actual knowledge of the actual infringements and its preventive duty only exist for the future thereafter. To further reduce the number of copyright infringements detected by the defendant’s filter software the court also held that YouTube had to additionally install a word filter, which was meant to detect newly uploaded videos whose ‘titles’ included the title of the musical work and its interpreting artist. This was necessary since the Conent-ID software could only identify identical music recording but would not detect other recordings of the same work, i.e. it could not detect a live recording based on a studio recording.

As regards to the remaining five of the twelve musical works included in GEMA’s claim, the court did not see any evidence that further videos had been uploaded after GEMA had altered the defendant of the infringing videos. Therefore, the court found that the defendant’s breach of its control duty had not been causal for further infringement. The court therefore decided in YouTube’s favour.

This decision is not yet final and can be appealed to the Higher Regional Court of Hamburg (and subsequently to the German Federal Supreme Court, the BGH). This Kat ventures the guess – and hopes - that this case will make it all the way to the BGH…. the questions raised are just too important. The court, by the way, is based in Hamburg, about 180 miles away from Berlin (which is quite a long way by continental European standards….).