One of the biggest problems with sites such as YouTube is that much of the material they host gets uploaded without the consent of its copyright owners. This clearly presents a particular problem for the music and film industry and their ongoing battle with copyright infringers is likely to define their future as well as that of the internet as we currently know it.
Against this background, GEMA (a German collecting society) has secured a partial victory for copyright owners over YouTube in Hamburg. It persuaded the local court to hold YouTube liable for continuing to host pirated videos even after it had been notified of the situation. However, the court explained that YouTube only had to take reasonable action to remove infringing material and, for instance, does not have to actively control or check all videos currently uploaded to its website.
GEMA sued in respect of 12 videos and YouTube argued it was not liable for potential copyright infringements: it only provided a platform for its users and hadn’t made the videos in questions nor uploaded them. Furthermore, it claimed it had taken all reasonable measures to prevent copyright infringements. The court agreed with GEMA in 7 of the 12 cases – while YouTube was not directly liable for the infringing acts, it had contributed to these by first making its video platform available to the direct infringers and then failing to “take down” the videos without delay once it was on notice.
But the court stressed the need for proportionality – all respective interests and rights had to be balanced against each other and, in particular, it would not impose any obligations on YouTube which would make its otherwise lawful business disproportionately difficult to conduct. But the court noted that YouTube already had software filters available to it which could prevent repeat uploads of the same musical work and that it had failed in this case to use these appropriately. As to the remaining five videos, the court did not see any evidence that further infringements had taken place after GEMA had altered YouTube.
Given the obvious legal and economic importance of this case, it’s likely that both sides will appeal – neither is going to be happy with a 7-5 scoreline and both can be expected to hold out for a more decisive result from a higher court.
For advice or more information, contact Graeme Fearon.