The Landgericht’s copyright chamber agreed with the claimant in seven of the twelve cases. The court disagreed with defendant and held that YouTube was not liable via the legal instrument of “Täterhaftung“, that is by actually having committed the infringing acts itself, but could only be held liable via the principle of disturber liability (“Störerhaftung”). The defendant had neither uploaded the videos, nor appropriated the content of the videos and thus was not itself
directly liable as “offender” (“Täter”) .
However, by having provided its video platform, the defendant had contributed to the infringing acts. These contributing acts resulted in the defendant having certain behavioural– and control duties and it was thus liable to stop the infringing acts as “disturber”. In particular, the defendant did not fulfil its duty to block the videos in question without delay after the claimant had informed it about the copyright infringements. In case of the seven videos YouTube only blocked access to the videos seven months after GEMA’s alert. Such a period of time did not qualify as “without delay”, the judges found.
As regards to the defendant’s further behavioural and control duties the court stressed that there was the need to conduct a test of proportionality, by which the respective interests and rights had to be balanced against each other. The court stressed that there should be no duties imposed on the defendant that would make its per se lawful business disproportionately difficult. However, the judges found that it was reasonable (“zumutbar”) after having been alerted of a copyright infringing act to to prevent future uploads of the same musical work (the same recording) by using filter software. Such software was already available to the defendant in the form of its Content-ID software, which the defendant had developed itself. The court held that the defendants had to use the software itself and could not leave this to its users, as the defendant had argued.
This decision is not yet final and can be appealed to the Higher Regional Court of Hamburg (and subsequently to the German Federal Supreme Court, the BGH). This Kat ventures the guess – and hopes - that this case will make it all the way to the BGH…. the questions raised are just too important. The court, by the way, is based in Hamburg, about 180 miles away from Berlin (which is quite a long way by continental European standards….).