YouTube v. GEMA Decision by Hamburg District Court

After having uploaded quite some posts about how liability for third party Internet content works in German law, and having done so in rather abstract terms (in part, admittedly, for shying away from translating dozens of pages of court decisions) here is a good example of how it works in practice. A colleague from Italy has thankfully posted an English translation of the YouTube v. GEMA decision of the Hamburg District Court of April 20, 2012 on his blog.

GEMA, for the sake of decoding the acronym, is Germany’s “Society for Musical Performing and Mechanical Reproduction Rights”, i.e. the institution that tirelessly works for the advancement of authors’ and musician’s well-being by collecting money from everyone who in (almost) whichever form or fashion uses “GEMAed music”, such as by posting music videos on the Internet, playing music in a café, or by singing GEMAed songs in kindergarten for the kids to later qualify for a decent college decree career as a barista.

At the core of the decision are two questions: Should YouTube (aka Google) be liable under German law as a “Täter” (perpetrator, offender) for GEMAed music being part of uploaded videos on YouTube (and thus, inter alia, be liable for damages as a result of a “primary” liability)? Or, if not, what does YouTube have to do once they have been made aware on an infringement, in order to avoid the so-called “Störerhaftung” (secondary liability resulting in an “obligation to cease and desist”) that we explained in an earlier post on this blog?

In short, the Court answers the first question with a (albeit not particularly resounding “no”, while holding that, having received a take-down notice regarding a certain song, YouTube is bound to not only take down the video in question, but to take far-reaching measures (word filters, use of YouTube’s ContentID system) in order to prevent the same GEMAed music from reappearing as part of another user upload. If the material reappears, YouTube will have to demonstrate that they did everything reasonably expectable to avoid the (new) infringing upload, a test that, from experience, would be rather difficult to meet. But read for yourself.

The GEMA and YouTube had been tangled up in their dispute for years, leading to YouTube screens like this one

From what the parties have said, both have appealed the decision while at the same time making another effort to finally come to a license agreement. But, it appears, for GEMA, who are look for a per view license fee scheme, the whole thing is a matter of principle with a capital P. And when German institutions start from a “It’s a matter of principle” point, reaching agreements becomes a difficult task…

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