Mixed verdict
April 21, 2012
Hamburg's State Court ruled on Friday that YouTube will have to take seven videos offline, including "Rivers of Babylon" by Boney M.
The verdict strengthens the position of Germany's royalty collections body GEMA which has been battling Google-owned YouTube over copyright issues for years.
The last agreement expired in 2009 and the conflicting parties have since been at loggerheads over the proper method to collect copyright fees.
However, Friday's verdict is not the landmark ruling which some had hoped would once and for all settle the contentious issue of copyright protection in the Internet.
Limited culpability
The Hamburg court decided that Internet platforms like YouTube are not directly liable for the breach of copyrights committed by users uploading protected material. However, the platform is now obliged to "deactivate immediately any illegal videos" once alerted by those holding the copyright.
Notably, the ruling does not oblige YouTube to check all content that has already been uploaded to its site – a key GEMA demand.
The judges said YouTube was not the main culprit because it does not upload or steal any content. Rather it facilitated the copyright breaches by offering and operating the online platform.
In order to prevent further copyright breaches, the judges called on YouTube to employ specific software capable of detecting songs in videos.
Mixed reactions
GEMA lawyer Kerstin Bäcker described the verdict as a "great success" because YouTube could now be held liable for its online content. GEMA spokesman Peter Hempel said the decision had created a firm legal basis for further negotiations with YouTube.
Kay Overbeck, spokesperson for Google Germany also viewed the ruling as a partial success. "The court has confirmed that YouTube is a hosting platform which cannot be forced to monitor all the uploaded video."
The high-tech industry federation Bitkom took a similar view, describing the verdict by and large as a "good signal for the Internet community." The judges had clarified that YouTube was merely providing a platform for users and in legal terms was not the supplier of the uploaded data, said Bitkom chief executive Bernhard Rohleder.
Initially most German media viewed the outcome as an important victory for GEMA. But lawyer and copyright expert Till Kreutzer dissented in an interview with DW, describing the verdict as a victory for YouTube. "What really matters is which legal status YouTube has," said Kreutzer, adding that the row over 12 videos clips was superficial and negligible. "Does it provide content or is it just an online platform facilitating the publication of videos? The former is liable, the latter is not."
If anything the decision has shifted liability away from YouTube to the users who upload the respective videos, according to Kreutzer. Now there are legal requirements for operating the platform, but there is no liability to charges, which means GEMA has failed to achieve its main goal of collecting fees for YouTube content. GEMA failed to convince the judges with its argument that YouTube was using the content for advertizing purposes which rendered it more than just a "service provider."
However, the Hamburg ruling is not set in stone yet. Should either party decide to appeal, a higher court could overturn the verdict. The struggle to find a copyright legislation that is accepted both by internet users as well as artists, musicians and publishers is far from over.
Author: Günter Birkenstock / nk
Editor: Andreas Illmer