GEMA, a German music royalties collecting agency, has just won a court case against YouTube making Google responsible for all uploads by its users. This article is a ´breaking news story´ so check back on this original post for corrections or additions..
In the Hamburg state court the judge ruled this afternoon that a number of uploaded music videos, for which no licenses were paid, shouldn´t have been allowed on YouTube. Google argued that it has no responsibility for uploads by users. They make a reasonable effort to check and even block videos when stakeholders inform them, but they can´t be held legally responsible for every video.
In what could well be a landmark decision the judge held Google responsible and fined the YouTube owner with up €250,000 per case (seven videos in total) or 6 months in jail. Now we don´t expect +Larry Page to fly over to Germany to do jail time and Google can easily afford the maximum penalty in this specific court case. However this decision goes much further as it effectively makes Google responsible for all copyright violations on YouTube.
Google is instructed to install additional filters to prevent the uploading of titles whose rights are represented by German Gema. YouTube already has a system called Content ID which identifies copyrighted songs and, as German readers will know, this is highly effective. Most of the YouTube movies with music are blocked in Germany. This is not enough says Gema, as some variations on the songs are not identified by the filter. They mention as an example a bad karaoke version which could slip through the content identification system.
*Now why would Gema object to a homemade version of ´Rivers of Babylon´ as sung by your drunken uncle on your birthday party? *No, not to protect the poor uncle from embarrassment the next Monday morning at the coffee machine, but to cash in on the song rights. Although the lyrics come straight from the bible the original song-writers are still entitled to a license fee every time the song is performed.
We are not joking as ´Rivers of Babylon´ was one of the disputed songs and YouTube has to install a filter on the name of this and other songs as part of the verdict. Google has argued in court that it wouldn´t work and that song title based identification leads to large number of false positives, but they haven´t persuaded the judge. Imagine filtering on every instance of “You and I” just because Lady Gaga made a song with that title!
However these specific songs are not the real issue. What´s at stake here is the responsibility for uploads. If Google becomes responsible for all user uploaded content, G+ can close its doors as well. A quick glance at G+’s content shows that copyrighted texts, images and videos are freely posted.
The new unified Google Terms of Service say: “Our Services display some content that is not Google’s. This content is the sole responsibility of the entity that makes it available. We may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content that we reasonably believe violates our policies or the law. But that does not necessarily mean that we review content, so please don’t assume that we do.”
In case you wonder, Google refers to you as that ´entity´. The responsibility for possible copyright violations is pointed at the user. Nice try, but following this verdict no longer true in Germany.
The case is officially limited to a number of songs, but there is no doubt that the next step will be to hold Google responsible for every violation of copyright. This would be the end of services like YouTube and G+ in Germany. A market of 80 million consumers which is just too large to lose so we expect Google to appeal, but at the time of writing there is no official word.
The end of an era or a fluke by the German court?
_Author: Max Huijgen
This is terrible news for the Germans, I hope that it does not have a ripple effect on the rest of europe.
All I'm saying is:
Hotspot shield. Use it.
It works that way.
Germany (so it seems to this outsider) makes some bizarre decisions that just defy logic. This is one such and would be akin to the postal service in the UK being held responsible for every item they deliver.
Google will definitely appeal this.
+Stuart Dyckhoff There's a reason why the Pirate Party has >10% in the latest polls.
http://www.wahlrecht.de/umfragen/index.htm
We have lots of incompetent and old people deciding about things they have no freaking idea about.
GEMA is a pain in the ass for anyone involved.
Sure +Peter du Toit but I didn´t have their confirmation as it was hot from the court room so left it at ´so we expect Google to appeal, but at the time of writing there is no official word.´
If you like the story please + it as Google monitors that for the what´s hot section and don´t forget to circle the +EuroTech page:)
That court rule is not the end of the story.
The Hamburg court is well known for its stakeholder friendly decisions and it's also well known that higher instances very often scrap a Hamburg decision.
+Wolf Weber The crucial question is not if better or other filters are possible but if Google is responsible for the copyright violation. No doubt this will be appealed up until the highest court possible as it will damage Google (and FB etc) business model, but based on earlier German copyright law interpretations this is quite likely the outcome.
+Max Huijgen have you read the official comment from the court? I have posted the link here: https://plus.google.com/102235836543922327908/posts/KmesvjHttQU
This looks a little different, than what was written by +EuroTech
http://justiz.hamburg.de/presseerklaerungen/3384912/pressemeldung-2012-04-20-olg-01.html
Is the official press release of the Hamburg court.
+Max Huijgen we've seen some decisions from Hamburg recently, not surviving the next court level which is still in Hamburg. The GEMA had choosed that court well knowing that Hamburg state court most likely will follow their claim.
So if this sticks does +YouTube just not transmit to Germany from now on? Sounds like a loss to Germany to me.
YouTube and GEMA do not have an active agreement about streaming videos where the GEMA has the rights. YouTube has to delete videos, if someone tells YouTube about the copyright infringement.
+Scott GrantSmith the court rule is ONLY valid for the 7 tunes in the decision. We have a different law system here and court decisions are for the respective case only.
+Siegfried Hirsch what´s the main difference? It was not available when I wrote it, but if you look at this part the fundamental issue has been addressed by the court.
Entgegen der Argumentation der Klägerin hat das Gericht jedoch eine sog. „Täterhaftung“
der Beklagten hinsichtlich der Urheberrechtsverletzungen verneint und lediglich eine sog.
„Störerhaftung“ angenommen. Da die Beklagte die urheberrechtsverletzenden Videos weder
selbst hochgeladen habe, noch sich deren Inhalte zu eigen gemacht habe, hafte sie nicht als
Täterin. Allerdings habe sie durch das Bereitstellen und den Betrieb der Videoplattform einen
Beitrag zu den Rechtsverletzungen geleistet. Aufgrund dieses Beitrags träfen die Beklagte
Verhaltens- und Kontrollpflichten. Diese habe sie verletzt und sei deshalb der Klägerin als
„Störerin“ zur Unterlassung verpflichtet.
We should also not forget, that the decision at first has to become final (res judicata) before there is any influence in YouTube's future behaviour in Germany.
+Max Huijgen I am not a lawyer, but GEMA wanted to make YouTube accoutable for every upload, which is not the case. But I think both sides have to find an agreement to end this horrible scenario for german users of the internet and youtube.
I understand +Siegfried Hirsch but Google´s defense that it´s not responsible has been turned down, that´s why I quoted that part. This court case has been restricted to 7 specific cases, but that argument is very wide if it holds up in appeals.
Agree completely that a solution has to be found
Good to know, +Wolf Weber. Thanks.
a legal analysis (in German) can be found here
http://www.lto.de/recht/hintergruende/h/gema-gegen-youtube-lg-hamburg-regelt-den-umgang-mit-musikvideos-auf-internetplattformen/
and it confirms the article: Google is not the copyright infringer, but is responsible for the infringement.
Any way to just cut off German use of YouTube and move on? Let Germans sort this out after that.
I buy music to include in my videos but now when I upload I get a strange warning from YouTube every time. I buy from a common retailer of music for videos and films but it seems their distributor is issuing the warnings. Really annoying but no take down notices. I wish YouTube's notice included something like "If you buy your music from these retailers you can blow off this notice."
Germany is going overboard with this issue. I agree +Jim Preston , google should just block Germany from using any of the Google's services. Better safe than sorry
This is great news for the Piratenpartei, third largest party in Germany in the last polls, and obviously for good reason. Copyright reform anyone?
Google loses (obviously), Germans lose (obviously), and what I find striking is that GEMA doesn't understand that it loses too. Cutting out users from promoting their songs will just decrease awareness for them. In the end, that will mean lower royalties.
A perfect 'everybody loses' situation. Well played, German court, well played.
In an interview recently Edgar Berger, CEO of Sony Music Entertainment, claimed that "censored YouTube videos cost us millions". He urges GEMA to stop blocking internet music services.
Link: http://m.welt.de/article.do?id=%252Fwirtschaft%252Fwebwelt%252Farticle13881492%252FDas-Internet-muss-frei-sein-nicht-umsonst.html
https://christianengstrom.wordpress.com/2012/04/24/book-launch-the-case-for-copyright-reform/