GEMA Vs. YouTube Hits The Three Year Mark As Rate Negotiations Fall Through Again

from the quite-possibly,-GEMA-hates-musicians,-Germans-and-anything-Google-related dept

It looks like the long-running dispute between GEMA, Germany's brutish performance rights organization, and YouTube isn't ending anytime soon. This licensing battle goes back to 2009, when Google's contract with GEMA ended and the German PRO asked for $0.17 per view, a rate Google claimed was "without comparison in the history of online music." (By comparison. YouTube was paying PRS, the UK performance rights group, $0.0034 per view in 2009.) GEMA countered that it had offered to take $0.01 per stream, but wanted YouTube to cough up more usage data in exchange for the cut rate.

Once this initial negotiation broke down, things went from frosty to litigious.
GEMA went on to sue YouTube in a 2010 test case for distributing copyrighted material without permission — holding it responsible for copyrighted material uploaded by its users. Then in April last year a German court ruled that YouTube must install software filters to prevent users uploading content whose rights GEMA holds.
After a couple of lawsuits, GEMA returned to the "negotiating" table, this time with an offer a bit more in line with reality.
Die Welt reports that GEMA wants the German Patent and Trademark Office to arbitrate on whether its proposed rate of 0.375 cents per stream is appropriate — but YouTube is arguing for a lower rate.
This doesn't really resemble a negotiation at this point. GEMA offers, Google counteroffers and all of a sudden, the home team's PTO is going to decide whether GEMA's preferred rate is "appropriate." But that's not all: GEMA is also suing YouTube to the tune (pun really not intended) of €1.6 million for the alleged unlicensed use of 1,000 songs from its catalog.

Not only that, but another German court is in the process of defining YouTube's role on the web, something that could potentially see YouTube remove itself entirely from Germany.
A Hamburg court is already arbitrating another row between GEMA and YouTube over how the platform should be defined. GEMA claims that YouTube is a content provider whose business model is built on content that is subject to royalties. YouTube, on the other hand, says it is a hosting service which simply makes space available to its users.
The push here is to remove any sort of "safe harbor" (such as it exists in German law) and hold YouTube entirely responsible for anything uploaded by its users. Framing YouTube as a content provider puts it right in the legal crosshairs, which is where GEMA wants it. Despite the efforts made by YouTube to curtail infringement, GEMA still wants to see it pay more.

Of course, GEMA's doing this "for the artists." And those artists must be thrilled, what with the world's most popular video streaming site serving up this message, rather than actual videos, all too frequently.


And wouldn't you know it, GEMA also has a problem with the message posted by YouTube, which has become visual shorthand for the German YouTube Experience.
GEMA is demanding that YouTube take down the on-screen notice blocking music videos in Germany that blames GEMA for the impasse. In November last year, GEMA head Harald Heker accused YouTube of deliberately misleading German users with the notice.

"The notice about GEMA is being posted wilfully, purely to stir opinion," he told WirtschaftsWoche magazine at the time. "YouTube is trying to awaken the false impression that the failure to license is GEMA's responsibility. That is simply wrong."
This sounds familiar. Those blocking or taking down videos for various violations seem to think that YouTube should keep them free from criticism, too. Considering YouTube has already negotiated licenses with various other PROs, including ASCAP and the infamous PRS, it certainly seems likely that GEMA's contentious relationship with, well, just about everyone, might have something to do with the "failure to license." GEMA can complain about the "impression" this message makes, but if it were solely up to Google, German citizens wouldn't be seeing this message at all. Here's Google's statement:
YouTube believes that rights holders and artists should benefit from their work. We have dozens of collection society deals in place across more than 45 countries because we provide an important source of income for musicians and a platform where new artists can be discovered and promoted. Music labels are generating hundreds of millions of dollars on YouTube every year. Artists, composers, authors, publishers, and record labels in Germany are missing this opportunity as a result of GEMA’s decisions. We remain committed to finding a solution with GEMA compatible with YouTube’s business model so that we can again provide a source of revenue for musicians and a vibrant platform for music lovers in Germany.
That's the crux of the situation. The artists, composers, etc. aren't just missing these opportunities -- they're not even being allowed to have these opportunities, thanks to GEMA's insistence on combative, hardline tactics. GEMA hasn't done much for the artists it "represents," but it's doing a great job turning Germany into a cultural island.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Jan 16th, 2013 @ 8:21pm

    If google did not buy youtube, it would have been dead by now due to the sheer amount of copyfraud nonsense.

     

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    vegetaman (profile), Jan 16th, 2013 @ 8:23pm

    So... I take it that everybody seems to think that Google just prints money, and they want in.

    I mean, damn it, they're established middlemen and gatekeepers of the industry. They're just too big to fail!

     

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    arcan, Jan 16th, 2013 @ 8:45pm

    Maybe google should pull youtube for a week and post a message saying that it is because GEMA is being greedy. let the public backlash handle it for them.

     

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    Anonymous Coward, Jan 16th, 2013 @ 8:56pm

    I say google just remove all GEMA properties thereby giving no revenue. How do you like it now GEMA.

     

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      IronM@sk, Jan 16th, 2013 @ 10:10pm

      Re:

      I say Google just leave all the GEMA properties there, pull their offices out of Germany, and tell their government to block it if they don't like it.

       

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        Ninja (profile), Jan 17th, 2013 @ 3:21am

        Re: Re:

        THAT! Or self-block in Germany and explicitly state why they are leaving naming all individuals and reasons. Sure this could lead to a huge problem for Google but I'm sure the awareness it'd rise would far exceed any lawsuit or money Google could end up losing. I would put a billion on the table to screw the copyright morns royally anytime.

         

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          Mr. Applegate, Jan 17th, 2013 @ 4:06am

          Re: Re: Re:

          " I would put a billion on the table to screw the copyright morns royally anytime."

          Do you have a billion to put on the table?

          or is this Monopoly(TM) Money?

          ;^)

           

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        TheDramatic, Feb 6th, 2013 @ 7:24am

        Re: Re:

        The german government is not allowed to block ANY website in the world by their own laws.

         

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      Discover Panda (profile), Jan 21st, 2013 @ 2:21am

      Re: How do you like it now GEMA.

      AH-HA-AH!!!)) When I was in Germany I simply connected through cheap and fast seed4.me Netherlands VPN to watch youtube. Unfortunately this vpn provider works by invitations, google for it. How do you like it now GEMA?!

       

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  • This comment has been flagged by the community. Click here to show it
     
    identicon
    bawb, Jan 16th, 2013 @ 9:00pm

    Blah blah blah four legs good big search bad blah copyright apologia blah blah arent paywalls just swell blah

     

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    Kam Solusar, Jan 16th, 2013 @ 9:52pm

    C3S

    Hopefully GEMA will get some competition by the new C3S in the future.

     

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  •  
    identicon
    Anonymous Coward, Jan 16th, 2013 @ 11:18pm

    If all you can be to others is an asshole, don't blame anyone whose first response to you is a fat wad of toilet paper.

     

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    jameshogg (profile), Jan 16th, 2013 @ 11:26pm

    I refuse to believe in a law that claims to protect artists by giving them exclusive rights to their works, but in practice forbids artists from having a say in their own works.

    At least remix culture recognises the need to make beloved artists famous in ways publishers are so backwards on. How can increased popularity not be in the interests of the artists? We can make laws to stop libel and plagiarism, perhaps a BBFC-like rating for derivative or unofficial copies, and give artists the rights of "officialism" which would allow them to officially approve and/or endorse of deviating works or advertising opportunities... for a well deserved fee. If cutting a brand label off of some designer clothes can dramatically reduce the sale value of those clothes, then we can safely gather that people will flock towards the official artists, not the knock-offs... and if the knock-offs are doing well, they can become official, and the artist gets more profit.

    Ohhhh, right, they need the incentives to actually do the creativity? No. We have Kickstarter for that. Stop your excuse making. If a small relatively unknown indie company can start a challenger console called Ouya and get $8.5 million, just imagine what the next big Batman movie could make on Kickstarter... or the next Half Life... or the next James Bond movie... For God's sake, am I the only one who sees a potential goldmine, here? And no copyright needed! There's no excuse for copyright anymore.

     

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      jameshogg (profile), Jan 16th, 2013 @ 11:40pm

      Re:

      By the way, it counts as an irony of history, but the way you stop pirates from selling copied DVDs is to get rid of the copyright laws.

      Mainstream movies turn to crowdfunding... end up putting the movie on YouTube because they've already got their incentives (and can still sell "official copies" online which no pirate can ever duplicate, as well as take all the advertising revenue and fees for "officialism" approval as I've said before). Once that is done, and people start realising they can see all the pre-paid work on YouTube, why would it ever enter anybody's head to buy a DVD for even £1 if it is floating around freely on the internet?

      If someone were to come up to you, pull out a spade, dig up a pile of dirt right in front of you, and then say "I'll sell you this dirt for £50" you would laugh, and quite rightly. This is the attitude we need to have towards pirates, and we can get it if videos go on free streaming services after getting crowdfunded incentives to pay for all the labour.

      If someone buys the dirt, we should not say in that case "well then I guess we have to make it illegal to sell dirt", we should say "the person who bought the dirt is an idiot!" which is the simplest explanation.

      I saw this sign by the side of the road that said 'Dirt for sale.' Wow. What a country we live in, eh? 'DIRT... for sale!' Boy, how'd you like to get inside this guy's mind and look around for a while, huh? 'Oh my God! HONEEEYYY! Honey quit servin' waffles and come here baby! I'm gonna sell DIRT! Look! It's everywhere!' - Bill Hicks

       

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    Anonymous Coward, Jan 16th, 2013 @ 11:57pm

    As shocking as that would be, I think Google should just block all of its services in Germany for a few weeks in protest. That would get German internet users talking and GEMA would either be forced to change its mind or the Bundestag would relax copyright law.

     

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      Anonymous Coward, Jan 17th, 2013 @ 12:18am

      Re:

      Actually, i think they should go one further:

      Put a blog post up, saying that GEMA are trying to make it illegal for Youtube to operate in Europe, and that, as a result, it will have to remove all content from Germany from Youtube's viewing populace. Then point them at GEMA and ask them to contact GEMA and tell GEMA to stop being asshats and make a deal that benefits everyone, not just GEMA.

       

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        Zakida Paul (profile), Jan 17th, 2013 @ 1:22am

        Re: Re:

        I would do that too. German users would not lose out because they would simply continue using their VPNs and proxies.

         

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        Anonymous Coward, Jan 17th, 2013 @ 4:38am

        Re: Re:

        That would result in the German government entering the stage with a vengeance to put an EU-boycut of youtube in place. Heck, France and Belgium are already ready to walk that way, so it is not unrealistic that Italy and Spain would be willing to horsetrade a bit for it, to make for enough people to force it through!

         

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          Josh in CharlotteNC (profile), Jan 17th, 2013 @ 6:39am

          Re: Re: Re:

          We can only hope that the various governments of Europe would be that stupid. If they thought the ACTA protests were a big thing, this would dwarf them.

           

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      maclypse (profile), Jan 17th, 2013 @ 2:35am

      Re:

      Pull youtube... It's an idea. Could be good for a larf.

      While they are at it though: pull the google search engine from every country where the press is demanding pay-to-link. See how well the newspapers do without google's "piracy".

       

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    Zakida Paul (profile), Jan 17th, 2013 @ 1:21am

    GEMA is doing far more to destroy music than piracy ever could. They demand exorbitant fees from users, clubs, pretty much anyone who wants to play music and do they even pass on that money to the people who make that music, the artists?

    How has their activities not been classed as extortion? That is what they are involved in.

     

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    Anonymous Coward, Jan 17th, 2013 @ 2:24am

    GEMA is behaving in the same way as any other entertainment related industry. it has to be 'their way or no way'! they are not interested in gaining anything for the artists or any other people that have been stupid enough to sign up with them. the ones that gain from the service is the people working for GEMA. the ones that lose are those that GEMA is supposed to represent. the best thing to happen here is that Google and YouTube pull out of Germany. see what sort of shit hits fan then.

     

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      gorehound (profile), Jan 17th, 2013 @ 5:03am

      Re:

      I agree with you.There are tons of Germans who are probably pissed off at GEMA/MAFIAA.Pulling youtube and shutting down google in Protest will certainly open up a bunch of Eyes.
      Germans and others should Boycott all GEMA.And make sure to tell GEMA to Fuck Off.

       

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    Adolf Hitler, Jan 17th, 2013 @ 3:29am

    Fucking nazis

    These fucking nazi GEMA people, they took my master plan and corrupted it.

     

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    jupiterkansas (profile), Jan 17th, 2013 @ 10:09am

    GEMA claims that YouTube is a content provider whose business model is built on content that is subject to royalties.

    Nobody puts videos on Youtube so Youtube can make money. That whole argument is a joke.

     

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    Anonymous Coward, Jan 29th, 2013 @ 4:18am

    I’m getting tired of these copyrights blah blah blah stories… it just comes down to who gets more of the money isn’t it? I don’t have a problem with Google/Youtube’s ad revenue-sharing model. The problem is everyone along the way wants a piece of that pie. IF, you are in Google/Youtube’s shoes, no way you would share 50/50 profit with anyone else when you have to provide the entire infrastructure to deliver that content. Content is important but without the means to reach your audience, what you created gets lost.

     

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    dramatic, Feb 6th, 2013 @ 7:41am

    Why is everybody complaining about german copyright laws...

    It has nothing to do with the german copyright laws because they are nearly the same in every european country.
    They are brought out by the European Parlament and are mandatory for all members. There are some adjustments that the german parlament can do to them.

    The Problem is how Gema works.
    If you sign a contract with GEMA as an artist
    you can give them full rights so you dont have any left...
    or exclude different media where you want to keep your rights and publish yourself.

    BUT you only can exclude WHOLE media not parts of it.

    For example you could exclude the whole WWW. But the artists do not want that because the want to sell on iTunes so they give Gema the rights which enables GEMA to sue youtube in the case a song is uploaded there. It's not a copyright LAW problem but a GEMA CONTRACT problem.

    The biggest problem is that GEMA is so big you can not change the way it works anymore...

    they already tried because they can not support the Creative Commons License in the current configuration but they wanted to.

    Unfortunately it's not possible.

    I am German and I am OK with youtube blocking Music Videos in Germany. I dont youtube to listen to copyrighted Music anyway...just covers made by users.

    Gema is half as bad as BMG and the other BIG labels are. They block your videos even if there is just very quite background music that is copyrighted..

     

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    Music Producer Mik, Feb 26th, 2014 @ 3:01pm

    You are all wrong

    Wow. You are all so wrong. The songwriters in europe (like Germany, Sweden etc) have made NO MONEY AT ALL (yes, that is 0) from YouTube for the last 9 years.. and how much has Google earned? Actually, Google earned _51 billion_ last year and probably the double in a couple of years. YouTube is a major part of that. Google have been stealing music for years and now they blame GEMA for not GIVING them their content. It is actually Google that doesn't allow users to see the content because they're too cheap, not the other way around. The music is available if you want it. Google doesn't want it because they've had it for free before, and the music industry is on its knees.

    I think the whole industry should get behind GEMA to make a change in the core of peoples heads. Music is not free. It takes time and money to create content. The whole piracy generation (like myself) have been getting used to getting software and music for free. This is starting to change with Spotify etc, but it is taking too long, and Google is not helping. You have to realize Google is actually the bad guy here. The ones making BILLIONS of dollars from this.

     

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