German Appeals Court Says Video Hosting Platform Not Liable For User Uploaded Videos
from the chalk-one-up-for-proper-application-of-liability dept
Earlier this year, we wrote about a German lower court ruling that found YouTube liable for copyright infringement, for the actions of a user, uploading a Sarah Brightman song to the platform. As I noted at the time, this didn’t make much sense at all, since there’s simply no way for Google to know ahead of time whether or not the user has permission to upload a video. Putting the liability on the service provider is simply nonsensical. The week after that ruling came out, I actually was in Berlin, for Berlin Music Week/Popkomm/A2N, and led a session discussing the legal status of YouTube. It was quite interesting, and I talked with a lot of folks on all sides of the issue (some were… um… angrier than others). But one thing that I was told over and over again by folks is that there are some serious issues with German copyright law, which considers third party liability a perfectly normal thing (and demonstrating how ridiculous this is, one audience member angrily read aloud some incendiary comments — one of which insulted Germans — from Techdirt and told me I was liable for it under German law, and then demanded to know why I hadn’t taken it down).
However, thankfully, it appears that not every court in Germany feels that this is what the law says, or that this is acceptable. Apparently, a few years back, the very same court that issued the YouTube/Sarah Brightman ruling also issued a similar ruling against a local video hosting site called Sevenload, saying that it was liable for infringing videos uploaded by users. However, it appears that the appeals court has now reversed that decision, and ruled that Sevenload should not be liable. After the jump, I’ve embedded an English translation of the ruling, but the key point is that the court found that since Sevenload is not active in selecting the content, it makes no sense to hold the company liable. It also laughed off the argument from the rightsholder that since it wasn’t known who uploaded the video, it could have been an employee of Sevenload. The court notes that this argument was brought up too late (i.e., not in the lower court decision) and that the plaintiff didn’t offer any evidence to support such an assertion.
One part I liked in the ruling is that the court pointed out that it should be common sense that user-created content is not from the company in question:
Furthermore, from other services on the Internet, Internet users are used to areas being set up in which users can participate, in particular discussion forums. The sensible Internet user does not, as a rule, regard these areas as the site operator?s own content for which the operator intends to take responsibility.
The court also cites other cases which noted online auction providers are not expected to review every auction before it goes up, “as this would call the entire business model into question.” Similarly, the court finds it silly that a video hosting service should need to inspect each video. While certainly no guarantee, this appeals court ruling appears to bode well for Google’s appeal of the Sarah Brightman ruling.