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.