BREAKING: FCJ refers case regarding YouTube’s liability for damages to the CJEU

A lawsuit between music producer Frank Peterson and YouTube (and Google) that has been ongoing since 2009 did not come to an end today. The German Federal Court of Justice (FCJ) decided to stay the proceedings and refer several questions to the CJEU, regarding (once again) the question of platform liability and the right of communication to the public.

the new YouTube logo
Peterson is seeking damages from YouTube and Google because videos containing recordings of German singer Sarah Brightman were available on YouTube, even after Peterson had asked the platform to remove all such content.

Both the Regional Court of Hamburg and the Higher Regional Court of Hamburg rejected Peterson’s claims, arguing that YouTube did not commit acts of communication to the public and was protected by Art. 10 TMG (the German Telemedia Act, which implements Art. 14 of the E-Commerce-Directive).

The FCJ now referred the following questions to the CJEU (case No. I ZR 140/15) [please note that this is a Kat-Translation, the official questions will be updated once they become available in English]:
Does the operator of an online video platform on which users make available to the public copyright protected content without the right owners’ consent commit acts of communication to the public within the meaning of Art. 3 of the Info-Soc directive when
- the platform makes revenue from advertisements, the uploads are an automated process without any control or checks by the platform before the content goes online
- the platform receives (according to the TOS) a worldwide, non-exclusive and free license for the uploaded videos  for the duration the video is online
- the platform reminds users in the TOS and during the upload process that uploading content that infringes third parties’ copyrights is prohibited
- the platform provides rights owners with tools to have infringing content removed
- the platform sorts videos into categories and lists them by ranking, and suggests further videos to registered users according to videos previously watched
provided the platform does not have actual knowledge of illegal activity or information or upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
Kat on a platform
The FCJ further asks whether the activity of such a platform is covered by Art. 14(1) of the E-Commerce-Directive and if the “actual knowledge of illegal activity or information” and, as regards claims for damages, “awareness of facts or circumstances from which the illegal activity or information is apparent” refers to concrete infringements (e.g. the specific URL of a video).

The next question is whether it is consistent with Art. 8(3) of the InfoSoc-Directive when a rights owner can only apply for an injunction against an intermediary when a second infringement occurred after the intermediary was notified of (and reacted to) a first infringement.

Finally, if the previous questions are answered in the negative, the FCJ asks if a platform as described in the first question must be considered as an ‘infringer’ in the sense of Art. 11(1) and Art. 13 of the Enforcement-Directive and if it is consistent with Art. 13(1) that the grant of damages depends on whether the infringer acted with intent regarding his own actions and the actions of the Uploader and knew or should have known, that customers are using the platform for infringements.
BREAKING: FCJ refers case regarding YouTube’s liability for damages to the CJEU BREAKING: FCJ refers case regarding YouTube’s liability for damages to the CJEU Reviewed by Mirko Brüß on Thursday, September 13, 2018 Rating: 5


  1. Well, this makes for an interesting dilemma. The DSM-directive seems to presume that YouTube indeed does make works available to the public. However, applying GS Media, YouTube could argue that, using Content-ID, they have carried out the necessary checks to avoid this presumption, which would lead to the conclusion that there is no communication to the public.

  2. Peter, the text of article 13 approved on September 12th says "online
    content sharing service providers perform an act of communication to the public" (Voss/EPP amendments, 156-161).

  3. Yes, that was what I was referring to as well. The text also implies that Article 3 is still applicable ('without prejudice''), which would open the door for the aforementioned defence.

  4. Could someone help me to understand article 13, 2b (for clarity purposes I will reproduce provisions 2a and 2b):

    2a. Member States shall provide that where right holders do not wish to conclude licensing agreements, online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter
    are not available on their services.Cooperation between online content service providers and right holders shall not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright.
    2b. Members States shall ensure that online content sharing service providers referred to in paragraph 1 put in place effective and expeditious complaints and redress mechanisms that are available to users in case the cooperation referred to in paragraph 2a leads to unjustified removals of their content. Any complaint filed under such mechanisms shall be
    processed without undue delay and be subject to human review. Right holders shall reasonably justify their decisions to avoid arbitrary dismissal of complaints.

    When reading provision 2b by itself, I understand services providers will be the ones in charge of processing the complaints (ok so far as is logical), but then, the text demands from right holders to justify their decisions so as to avoid arbitrary dismissal of complaints.

    That makes me think that either I should:

    Option 1) understand the provision as being correct so as to affirm that when article 2b states that "Right holders shall justify their decisions" it actually makes reference to the decision of "not wishing to conclude licensing agreements" provided in provision 2a or,

    Option 2) understand that there is a mistake in provision 2b and that the text actually would have to be the following "Online content sharing services providers shall reasonably justify their decisions to avoid arbitrary dismissal of complaints."

    Thanks for your kind help, do not hesitate to add another option. As always, thanks IPKat.

  5. @Carlos, I believe this was just a mistake. The final text reads "When rightholders request the services to take action against the uploads by users, such as disabling access to or removing content uploaded, the rightholders should duly justify their requests."


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