German Court Says YouTube Isn't Liable For Infringement, But Wants A Notice-And-Staydown Process

from the that's-troubling dept

YouTube and the music collection society GEMA have been at war for many years. Five years ago, I was at Berlin Music Week and it was one of the major points of discussion. YouTube was blocking all music videos, since GEMA insisted that YouTube should pay rates on par with digital sales (iTunes) rates for each play. Musicians I met with in Germany were furious at GEMA's obsessive control over their own music -- with one musician even showing me how he had an official website that GEMA was aware of, and an "unofficial" website his band showed to fans, which offered up free music (something GEMA refused to allow). The various court rulings in the case have been a mixed bag with some finding YouTube liable for user uploads, and even saying that YouTube needs to put in place a keyword filter.

German Courts also haven't been too happy with YouTube's custom message for (accurately) explaining why so much music is blocked in Germany. While YouTube and GEMA have tried negotiating a deal (as collection societies in basically every other country have done), in Germany it never seems to happen.

The latest ruling, in one of the key court cases is an appeals court ruling that upholds the lower court ruling saying that YouTube is not liable for infringing uploads by users and doesn't have to proactively search for infringing content. This is good. But, the court also appears to suggest that YouTube's ContentID is not enough -- and suggests it supports a sort of "notice and staydown" kind of system:
“However, if a service provider is notified of a clear violation of the law, it must not only remove the content immediately, but also take precautions which ensure that no further infringements will be possible.”
While that may appear reasonable at first glance, in practice it's a mess. The only way to even try to do that is to over-aggressively block any and all uses of that particular work -- which will undoubtedly lead to overblocking. Song playing in the background? Blocked. Parody video? Blocked. Algorithm not sure? Blocked.

A more detailed ruling is expected in a few weeks, but this seems like a mixed bag.
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Filed Under: contentid, copyright, germany, liability, monitoring, music, staydown, takedown, youtube
Companies: gema, google, youtube

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  1. identicon
    Anonymous Coward, 2 Jul 2015 @ 4:55pm

    Re: 'I will make them an offer they cannot refuse'

    "Your second and third points seem to directly contradict each other."

    Well, yes that is kind of the problem. But even if you join Gema you might only have the downside because you could end up paying more than you earn. Yes weird as well but also some articles were written about that.

    The "key" the Gema uses to pay their artists is so complex, strange that only the top artists earn money. If you don't meet certain criteria (from what I heard) you have to pay them more than they pay you and because they own all the rights to your music you can't do anything about it.

    That's why I said the whole "f*ed up" thing. Also that is why the C3S is so important. Because the whole thing is based on the assumption that there is only Gema. But if there is a 2nd company with the same influence than the law might have to be rewritten.

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