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GEMA suffers another knockback in ongoing YouTube litigation

By | Published on Monday 1 February 2016


With the music industry having turned its love/hate relationship with YouTube into more of a hate relationship in the last two years, there are some who have wondered of late “maybe GEMA got it right?” Who’d have thought it possible?

The German music publishing and songwriter collecting society has been a vocal critic of YouTube throughout, refusing to license the video platform and arguing that Google should be liable for the videos containing its songs that nevertheless appear on the site.

Elsewhere, record companies, music publishers and other collecting societies have licensed YouTube for years, and continue to do so, despite increasingly joining GEMA in criticising the royalties the video site pays, and its use of the so called safe harbours in copyright law to reduce its obligations to ensure unlicensed music never appears on its site.

But while the GEMA viewpoint on YouTube may have become more prevalent in music circles (though not amongst the marketers who still rely on the video site to promote their new acts, of course), that hasn’t been helping the German collecting society in court where it continues to argue that Google is liable for the musical videos it hosts without licence.

Last week, the regional court in Munich confirmed an earlier district court ruling that said YouTube wasn’t liable, because it’s just a ‘mere conduit’, as tech firms like to say. YouTube’s users may be liable for copyright infringement for uploading videos containing GEMA-repped works without licence, but the video site itself is not. Meaning GEMA is not due royalties from Google for every play of every video containing one of its songs that YouTube has ever hosted, at rates set by the society.

Needless to say, GEMA ain’t happy with the ruling. “Today’s decision is most regrettable”, said its General Counsel Tobias Holzmüller. “The court has obviously accepted YouTube’s argument that it is only the uploaders who are responsible for the content that is retrievable via the service. We consider this to be wrong”. It also meant, Holzmüller added, that YouTube could sell advertising around the unlicensed content until the offending video was spotted and blocked by a rights owner, and keep any advertising income

GEMA’s Director Of Broadcasting And Online, Thomas Theune, added: “In our opinion, YouTube exploits works retrievable via the service. This type of exploitation is subject to licence fee payments. YouTube is not only a technical service provider, it actually conducts itself like a music service. As a consequence, YouTube should, just like a music service, obtain licences and not pass the responsibility on to the uploaders”.

GEMA still has the right to further appeal the ruling, and said it probably would after reviewing last week’s judgement in more detail. Meanwhile I’m going to get “maybe GEMA got it right” t-shirts printed up to sell at The Great Escape this year. And maybe accompanying “no they didn’t” hoodies. Just to keep everyone sweet.