GEMA

Vs.

YouTube.

4. February 2016

from

Clemens Pfitzer

Users can upload and publish videos on video platforms such as YouTube. But what happens if users upload videos with illegal content, e.g. in infringement of copyright? This raises the question of whether YouTube is liable for this. The Higher Regional Court in Munich has made a decision in this regard.

What is it all about?

The music rights exploiter GEMA filed a lawsuit against YouTube, the operator of a platform for online videos. GEMA is seeking damages because certain musical works were uploaded to YouTube’s servers and made publicly accessible to internet users in Germany and elsewhere without the corresponding rights of use.

YouTube refused to pay damages as it had not uploaded the music videos itself, but merely made the platform available to users.

GEMA, on the other hand, is of the opinion that YouTube exploits the retrievable works and is not merely a technical service provider. YouTube, like a music service, must acquire licenses for the exploitation and is therefore liable for damages.

The Munich Regional Court rejected the collecting society’s claim. In the previous instance(judgment of 30.06.2015 – Ref. 33 O 9639/14), the Munich judges had found that a platform operator is only liable for the content publicly accessible on its platform if it has published this content itself.

The court’s decision in GEMA v. YouTube

With Judgment of 28.01.2016 – Ref. 29 U 2798/15 the Munich Higher Regional Court dismissed the collecting society’s claim for damages. It thus confirmed the opinion of Munich Regional Court that the platform is not responsible for the uploads of its users and therefore cannot be held liable for copyright infringements.

However, the individual users who upload videos are solely responsible.

According to the Munich Higher Regional Court, the decisive factor is that YouTube is only a technical service provider. The relevant infringing act, the making available to the public by uploading the work, is carried out by the user. As soon as YouTube users upload their videos, they are immediately accessible to the public without YouTube having to intervene. There was therefore no act of infringement by YouTube that could justify a claim for damages.

Conclusion

The decision must be distinguished from the ruling of the Hamburg judges in July 2015, in which YouTube’s liability was affirmed. However, only vicarious liability was affirmed because the video portal had not removed the content immediately after becoming aware of the copyright infringements.

The decision of the Munich Higher Regional Court is not expected to end the legal dispute. An appeal to the Federal Court of Justice has been expressly permitted. It remains to be seen whether and, if so, what decision the Federal Court of Justice will make.

Since then, GEMA has been taking action against the unauthorized use of music on online platforms.

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