Digital Legal

GEMA scores court win in long running YouTube dispute

By | Published on Monday 23 April 2012


In an interesting development in a long running dispute between Google and the German collecting society GEMA, the web giant might have to step up the way it filters content uploaded to its YouTube video-sharing website in Germany following something of a landmark ruling in the German courts.

YouTube and GEMA have been in dispute for some time over both the rates the Google-owned service offered the collecting society to licence the songs it represents for play on the video site, and the fact YouTube relies on rights owners to proactively remove their content from its platform if and when it’s uploaded by private users, rather than blocking all content until a rights owner has given express permission for it to appear.

YouTube basically operates a system worldwide based on US copyright law. Under America’s Digital Millennium Copyright Act, a technology firm is not liable for infringing content posted by its users providing it has a system in place via which rights owners can demand content they own be removed, if uploaded by others without permission. That this principle applied to services like YouTube under US law was confirmed in the Viacom v YouTube case (and even though elements of that case are heading for an appeal hearing, that basic point is not part of the appeal).

But outside the US, the principle that protects YouTube from infringement claims at home frequently doesn’t exist under other copyright systems – though in most territories collecting societies and big rights owners have generally chosen to licence YouTube anyway, and to tolerate to an extent those unlicensed services that would enjoy protection under American law.

But not GEMA. And when its long running battle with Google reached the Hamburg State Court on Friday, the judge mainly sided with the collecting society, ruling that YouTube had an obligation to install filters that would stop its users from uploading recordings of songs owned by GEMA members.

Of course YouTube already has some pretty sophisticated filters in place for stopping the upload of content already logged on its system as ‘not cleared by owner’, and that filtering goes someway beyond the requirements of the DMCA regarding takedown systems.

Though in theory, under last week’s ruling, rather than each GEMA member logging the songs they don’t want to see uploaded to YouTube, Google would have to automatically block all GEMA represented songs unless told otherwise. And that’s a significant, if subtle, difference, especially if a precedent is set and then expanded to any other content not covered by an existing YouTube content licence.

Of course if that rule is set, it would be much easier for YouTube to just agree licensing terms with GEMA, so nothing needed to be blocked or filtered, which would certainly strengthen the collecting society’s hand at the negotiating table (it’s always pushed for more in royalties from YouTube than other societies). Which, some might say, was the main aim of this entire legal squabble anyway.

YouTube is yet to respond to the ruling or comment on whether it plans to appeal, but GEMA Chairman Harald Heker told reporters: “We reached our primary goal one hundred percent, to have the court confirm that YouTube is fundamentally responsible for videos posted by users. YouTube must implement appropriate measures to protect our repertoire and cannot simply pass on this obligation to the copyright holders. This is an important victory for us”.

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