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Thursday, 3 March 2016

OLG Munich: YouTube not liable for damages for hosting copyright infringing content

In a decision of 28 January 2016, the Oberlandesgericht Munich, like the first instance court before it, held that YouTube is not liable for financial damages for hosting copyright infringing videos.

Plaintiff was the German collecting Society GEMA, acting on behalf of composers. It sent YouTube a list of 1,000 videos with music viewable on YouTube.com that were uploaded without the consent of the copyright holders and demanded information on the revenue generated by the display of these videos in preparation of claiming damages. When YouTube refused to comply, GEMA sued before the Landgericht Munich, which dismissed the complaint.


On appeal, the OLG Munich also sided with YouTube. It carefully analyzed whether YouTube could be considered a perpetrator (Täter) of copyright infringement for hosting user uploaded content and concluded that it was not. According to the court whether YouTube was a perpertrator had to be assessed under the standards of German criminal law. Whether or not the safe harbor provision of art. 10 Telemediengesetz (which implements art. 14 (1) E-Commerce Directive) applied was irrelevant.

The fact that without YouTube's contribution, the infringement could not have occurred was insufficient to create civil liability. For information hosted on behalf of third parties, the operator of the platform was only liable if it adopted the content as its own ("sich zu eigen machen"), which was the case, e.g., when it assumed editorial responsability by selecting the content and checking it for completeness.

In the case of YouTube, it was the user that made the content available by uploading it. YouTube did not assume any editorial responsibility. The overlay of the YouTube logo on the start page of videos, the categorization of content into categories such as Jazz or Rock or automatically generated biographies of artists, and the deletion of infringing videos on request of right holders did not amount to editorial responsibility.

YouTube also was not an abettor (Gehilfe) to copyright infringement. Abetting requires actual knowledge of the specific illegal act being supported. The general knowledge that some users upload infringing content is insufficient. The mere knowledge of the possibility that the means provided could be used for illegal purposes is only sufficient if the risk of illegal use is very high, which was not the case for YouTube's services, which have many legal uses.

Since YouTube was therefore not liable for financial damages, the request for the provision of information was denied. The OLG Munich allowed an appeal (Revision) to the Bundesgerichtshof, and GEMA has already announced it will "likely" appeal the decision, so we are likely to hear again from this case.

Note that GEMA did not request injunctive relief and the court therefore did not have to address the issue whether YouTube had to remove infringing content if it had been made aware of its infringing nature (yes).

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