German High Court Postpones YouTube Illegal Uploads Ruling

Despite having its own Content ID filter, YouTube suffers yet another legal setback in Europe.

For ten years now, German music producer Frank Peterson has quarreled with YouTube in court.

Users had illegally uploaded several titles from a singer he frequently works with — Sarah Brightman.  Peterson owns the copyrights to multiple songs from her catalog.

Unfortunately, the popular video platform didn’t adequately respond.  So, Peterson took YouTube to court.

According to Peterson, YouTube has monetized the infringing content and ignored takedown requests.  Thus, not only should the video platform pay damages, it should also reveal who uploaded Sarah Brightman’s works.

Three years ago, a court in Hamburg ruled YouTube must prevent all unauthorized distribution in the future.  The ruling, which found YouTube wasn’t liable for copyright infringement, spared the platform from having to pay damages.  So, despite having monetized the works, YouTube didn’t pay Peterson a single thing.  Nor did the video platform have to reveal who infringed on Peterson’s copyrights.

That may soon change, however, according to a new decision taken earlier today.

Should YouTube be held liable for infringement on its platform?

The Federal Court of Justice (BGH), Germany’s highest court, has postponed the final ruling, deciding whether the platform is ultimately liable for copyright violations on its platform over Peterson’s works.

According to the BGH, the court needs the opinion of the European Court of Justice (ECJ) to make the decision.  Only the ECJ can properly interpret European copyright law, which remains the center of this case.

Here’s the key argument German judges presented the ECJ.   When an internet platform operator makes copyrighted content available to users (uploaded by another user who doesn’t own the copyright), is this considered a “communication to the public” forbidden under EU law?  If so, what role do these platforms play in regards to IP violations?

Unfortunately for YouTube, recent rulings have all-but-signaled European lawmakers now intend to hold the video platform liable.

Last June, the Vienna Commercial Court found YouTube actively sorts, filters, and links all video content, including those featuring copyrighted material.

Austria’s Plus 4 television station had sued the video platform 4 years ago.  As with Sarah Brightman’s content, YouTube had repeatedly allowed Plus 4’s content without permission.

The video platform had argued it merely serves as a “neutral content provider.”  The court in Vienna didn’t buy the argument, finding YouTube curates user-generated content.  Thus, the company can’t claim a “neutral intermediary status.”

In addition, despite Google funding $36 million to scuttle the Copyright Directive, European Parliament ruled in favor of sweeping changes to copyright law.

Among the sections included in the bill is Article 13.  This section forces YouTube and other platforms to install an effective content recognition technology to prevent copyright infringement.  If a user bypasses this filter, the law would hold the video platform liable.  YouTube would have to pay a price for infringing works on its platform.

So, what potential fallout does Google’s video platform face from these rulings?  Simple.

YouTube can no longer exploit the lack of legal protection on digital media to avoid legal liability.  Based on these recent legal precedents in the region, expect the ECJ to write an opinion holding the video platform accountable.

Plus, as the video platform actively monetizes videos, including those containing copyrighted material, it may have to finally pay what’s owed.  Not only to Peterson, but to Plus 4, content creators and many other copyright holders.

Because let’s face it.  YouTube’s own content recognition technology – Content ID – frankly just doesn’t cut it anymore.


Featured image by fdecomite (CC by 2.0)

13 Responses

  1. Lest it be overlooked...

    The obvious course of action regarding Articles 11 and 13 would be to simply block all 27 EU countries from linking to any content whatsoever from the YouTube platform, for example (Section 11), and further blocking any content uploads whatsoever from the 27 EU countries to the YouTube platform, for example (Article 13).

    Bear in mind, assuming that YouTube decides to block any content uploads whatsoever (no better filter than absolutely no uploads whatsoever, right?), that even though the YouTube users in those 27 EU countries may not be able to upload any content whatsoever (Article 13), they would still be able to view content uploaded from the rest of the countries of the world on YouTube (including, of course, pre-roll ads, et cetera).

    It also takes no great stretch of the imagination to envision the financial consequences that the news publishers in all 27 EU countries would have to endure if Google, for example, were to simply prohibit any linking whatsoever (Article 11) to news articles, et cetera, from the news publishers, and others, in all 27 EU countries like they previously did in Spain, for example, when they attempted to impose a similar “link tax” in the past.

    Bear in mind, those 27 EU countries would still be able to access content from The Los Angeles Times, The New York Times, The Washington Post, et cetera, et cetera.

    Realistically, how long would it take before the very same news publishers, and others, are wining to the very same Parliament to remove both Articles 11 and 13 because of the significant revenue losses. I did not yet mention that if Google, for example, were to prohibit linking to any content whatsoever in all 27 EU countries, Google might decide to charge the news publications for distribution by the number of impressions and clicks like Facebook does to make up for lost revenue.

    And what of the YouTube users in those 27 EU countries, how long before they take to the streets when they find out that YouTube, for example, had to necessarily block any content uploads whatsoever from YouTube users in those 27 EU countries as the potential liability was just to significant, and that the situation was caused by overzealous copyright holders (not to be confused with the authors, for example).

    This parade of horribles may, at first blush, appear to be rather extreme, but ask yourselves: “What would you do if you were exposed to the same potential liability?” It seems to me to be the reasonable course of action in the circumstances.

    In any event, its not like it’s the law of the land at this juncture; perhaps, the EU copyright holders, and others, will come to their senses before any of the above comes to pass, but then again, what do I know.

    • Anonymous

      Everything you just said works on the assumption that Youtube is going to block the very thing it needs to survive.

      They’re not

      They need all that content on their site in order to sell people advertising because that is their business.

      The ruling only forces Youtube to acquire licenses for the content they use and no longer puts the burden on the user

      • Anonymous

        “They are not”
        You people sue for pictures of mickey in hospitals for christ sake “true story” whos going to stick around with your risk factor? Go back to selling cds on old clunky walkmans. You destoyed the internet like the good nazi you are. Be happy.

      • Anonymous

        You will not survive ANYTHING with machine or man where you have to make sure every WORD on the digital space is not an infringement. No matter what some old man who does not know the internet is like voss who admits he does not even know what is in what he just passed says.

          • Anonymous

            Imagine if you had to go over the entire world with a toothbrush to get rid of dirt becuase someone passed a law.
            Is essentially what he just said. MEP voss the rappatour who pushed for this voted for it and later admitted he had no idea what was in what hw he just passed and how vague it was “or so he claims” they are going to delist europe.

  2. Anonymous

    God Europe stop trying to compete with russia! We have been doing this since the 40s!

  3. Versus

    YouTube has ContentID.
    This means they should be able to block any infringing content.

    YouTube should be opt-in for rights-holders. Then use ContentID to allow music only of those rights-holders who explicitly opt in to allow use of their material on YouTube.

    If it must be opt-out, then YouTube has to enforce it, again with ContentID.

  4. Lest it be overlooked...

    I had initially intended to limit my comment to that which is stated above, however, as the issues are extremely important, I thought it prudent to further research the matter so that I would have a better understanding of the issues. Firstly, as I am unsure whether or not the DMN readership are fully cognizant of the issues, I will attach a few links below which expound upon the same. If I have missed something, which I am sure I have (as these are complex issues), please bring such to my attention, thank you.

    I previously made quick mention of Sections 11 and 13, but there are more matters of concern outlined in the Electronic Frontier Foundation and Ars Technica articles linked below:

    Hopefully, I now have your attention as these are important issues, and please know that I will strive to keep this post as short as possible.

    Since my initial comment, I became aware of a further development which will require removal of “illegal terror content” within one hour of it being flagged by national authorities; failing which, internet platforms could be fined. All of which further buttresses the “parade of horribles” outlined in my initial comment.

    As for the reasonableness of the “link tax,” as the EU Parliament and others know, Belgium, Germany and Spain have traversed down this road before.

    “First” there was the “Right To Be Forgotten,” then there was the “GDPR,” then, then, then? As for the “Right To Be Forgotten,” that is matter which was just recently argued by Google before the EU Court of Justice regarding a position asserted by “The Country That Cannot Be Named.” All of which is to say, that the “parade of horribles” outlined in my initial comment may of necessity come to fruition.

    As I am aware of the DMN article posted today regarding the Music Modernization Act (MMA), for the sake of brevity, suffice it to say (at this juncture, having previously posted on that issue), given the complexity and highly controversial nature of all of these issues that, perhaps, the old-aged adage “haste makes waste” is relevant as made clear with regard to the “European Experience” when acting capriciously, to say the least, in such circumstances.

    For those that may be interested in further information, I have attached a link below:

  5. Lest it be overlooked...

    “Only the [European Court of Justice] can properly interpret European copyright law which remains the center of this case.”

    As noted above, there are not one, but two important cases before the EUCJ.

    The first concerning YouTube as noted in this DMN article, and the second concerning Google as noted in my comment above, which, for ease of reference, I link to below. Obviously, the issues and ramifications of the outcome of those cases will affect not only YouTube and Google, but countless others as well.

    Though the General Data Protection Regulation (GDPR) and The Directive on Copyright in the Digital Single Market (EU Copyright Directive) set out many objectives which should raise concern amongst the users of the internet in general, to say the least (some of which I pointed out above), I posted again as I again thought it prudent to do so regarding, in particular, the GDPR in general, Section 11 of the EU Copyright Directive and, as allude to in the quote above, the EUCJ.

    Firstly, as noted by many authors, journalists, commentators, vloggers, et cetera, regarding the GDPR, enforcing the same could run afoul of the First Amendment.

    Indeed, the GDPR is presently being used to try and erase a US Court Docket:

    Secondly, regarding Article 11 of the EU Copyright Directive which purports to authorize a “link tax,” among other things, based on the theory of copyright violations could run afoul of Article 1, Section 8, Clause 8 of the US Constitution.

    The Electronic Frontier Foundation explains Article 11, as follows:

    “Article 11: Linking to the news using more than one word from the article is prohibited unless you’re a service that bought a license from the news site you want to link to. News sites can charge anything they want for the right to quote them or refuse to sell altogether, effectively giving them the right to choose who can criticise them. Member states are permitted, but not required, to create exceptions and limitations to reduce the harm done by this new right.”

    But what of Baker v. Selden, 101 US 99, 105 (1879), which, in part, provides as follows:

    “The term ‘science’ cannot, with any propriety, be applied to a work of so fluctuating and fugative a form as that of a newspaper or price-current, the subject-matter of which is daily changing, and is of mere temporary use. Although great praise may be due to the plaintiffs for their industry and enterprise in publishing this paper, yet the law does not contemplate their being rewarded in this way: it must seek patronage and protection from its utility to the public, and not as a work of science.”

    Fundamentally, these are constitutional issues (to be sure, there are others) which directly affect the public order of the United States and as such should not be subject to judicial scrutiny by the EUCJ. Such controversies should ultimately be decided by the US Supreme Court at first instance and not the courts of a foreign state.

    Somewhat similar to the circumstances of Microsoft in Ireland, it certainly appears that to comply with the GDPR and the EU Copyright Directive within the US that “they will be forced to violate the law in one location or the other.”

    See, for example:

  6. Me

    Fucking germans destroying it for everyone else in the world again……