Top EU Court Rules Online Platforms Are Not Liable For Copyright Infringements Of User Uploads, Unless They Actively Intervene

from the nice,-but-likely-to-be-superseded dept

One of the most contentious areas of Internet law is the extent to which sites are responsible for the actions of their users. One issue concerns user-uploaded materials: if these infringe on copyright, should the platform be held responsible too? The EU’s highest court, the Court of Justice of the European Union (CJEU), has just ruled on two cases touching on this question. One concerned the posting of music recordings to YouTube, while the other involved medical textbooks published by Elsevier, which appeared on some filesharing sites. Both cases were before the Federal Court of Justice in Germany, which asked the CJEU to provide guidance on the liability of online platforms as regards to copyright materials posted by users. The basic decision is straightforward (pdf), explained here by the court’s press release:

the Court emphasises the indispensable role played by the platform operator and the deliberate nature of its intervention. That platform operator makes an ‘act of communication’ when it intervenes, in full knowledge of the consequences of its action, to give its customers access to a protected work, particularly where, in the absence of that intervention, those customers would not, in principle, be able to enjoy the broadcast work.

In that context, the Court finds that the operator of a video-sharing platform or a file-hosting and -sharing platform, on which users can illegally make protected content available to the public, does not make a ‘communication to the public’ of that content, within the meaning of [EU] Directive 2001/29 [on copyright], unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright.

Put simply, platforms need to be involved in making material available in some active way before they can be held liable.

In an excellent Twitter thread, Julia Reda points out some interesting aspects of the ruling. First, she notes that copyright companies have long tried to push the idea that platforms like YouTube, largely based on user-uploaded material, are automatically playing an “active” role, and are therefore not mere conduits. The latest CJEU ruling says that for a platform to be liable under the EU’s eCommerce Directive “it must have knowledge of or awareness of specific illegal acts committed by its users relating to protected content that was uploaded to its platform.”

However, a platform may be required to use “appropriate technical measures” to “counter credibly and effectively copyright infringements on that platform”. Within the full judgment is the following comment by the judges:

YouTube has put in place various technological measures in order to prevent and put an end to copyright infringements on its platform, such as, inter alia, a notification button and a special alert procedure for reporting and arranging for illegal content to be removed, as well as a content verification program for checking content and content recognition software for facilitating the identification and designation of such content. Thus, it is apparent that that operator has adopted technological measures to counter credibly and effectively copyright infringements on its platform.

Reda points out that YouTube’s “technological measures” are regarded by the court as “credible” and “effective”, even though they do not use an upload filter of the kind that Article 17 of the EU Copyright Directive is likely to need. As she writes: “Providing a button that allows rightholders to easily notify infringements can be an appropriate technical measure.”

That’s good news, but it’s important to remember that the current CJEU ruling refers to EU law as it was before the Copyright Directive came into force. As such, its views on upload filters are likely to be superseded by the important case brought by Poland, seeking to have them thrown out completely. It may be that the CJEU rules that Article 17’s strict upload filters are legal in the EU, which would therefore negate the current judgment’s more lenient view of what is needed. The first indication of which way the court may rule will come next month, when a CJEU adviser will offer a preliminary opinion on the matter. Although the new CJEU position on technological measures is welcome, it is the future ruling on Article 17 that will be decisive.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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Comments on “Top EU Court Rules Online Platforms Are Not Liable For Copyright Infringements Of User Uploads, Unless They Actively Intervene”

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12 Comments
Anonymous Coward says:

Re: Re: Re:

Put another way, the burden is on Rico to prove that a reasonable person would have been shocked — shocked, I tell you — that illegal gambling was going on in his club. There’s some "Dance Hall Doctrine" from a century-old case and one involving counterfeit goods at flea markets.

This is actually very old law.

ECA (profile) says:

The fun of it all.

Lets say that the Corps install a DMCA programming into the movie/music.
How to control access?
Make New devices to Play them?
Wow, Plug my recorder to the output and I can make copies.
Make it so it use’s the net before it can play?
Wow, get a recorder in the middle(make it look invis tot he device, they already have this) and record it Without the DMCA programming.
Register the Movie/music TO the individual, with Encoding internal to the product. And dont tell anyone, except the judge when you take them to court.
Soon after we discover this happening, we setup a recorder, and copy it to another format and DO IT AGAIN.

Just for Fun.
BBC series over the years had Lost over 300 episodes of an older series Still being created today. Dr. Who.
They sent out a request that Any copies found, that they would love to have one also. Dont know if they paid for any of them. And I have Not seen the movies made from the series come out. Last I heard, they had still lost over 97 episodes.

Also knowing the movie music industries past works. The odds of hearing about 90% of it is almost NOT going to happen. Contracts from the past and Control over the products, mean they can do anything they want. Including False scarcity.
Allot of movies and music have been lost for reasons, like FIRE, Water, Explosions. And never Being up graded from the past recordings to newer formats.
Then there are the Rich persons/groups that bought up the original recordings, and dont have to release anything.

Even if the consumer is willing to do the WORK for the corps to transfer and update the materials, If they find out and Find you, its about a $200,000 fine.
Iv seen better upgrades by consumers then those from the Corps.

tp (profile) says:

Riaa/MPAA position...

If your lowly web site displays/performs or distributes a copyrighted work, you’re responsible for the copyright infringement if you didn’t obtain permission beforehand. Youtube’s position that they’re not responsible because someone else clicked it to youtube’s web site, is not very convincing argument, and we will keep considering youtube as serial copyright infringer. While they had small success in twisting the laws to their advantage, doesn’t remove the fact that OPTOUT pattern is twisting the market to youtube’s advantage, when copyright laws require OPTIN pattern — the contract between publisher and copyright holder need to exist before publication. Basically youtube was seriously against the established copyright laws. Mentioning their rules in terms of service(TOS) is not such explicit contract that is required by the law. Further, letting anyone and their cat to upload content without verifying ownership of the material is clearly against good publishing practice. Only the most valuable content should pass the gate, and recognizing such content is essential part of expertise of what professional publishers are doing. The fact that youtube is not even trying to filter out bad content from the submitted material is completely ridiculous pattern.

Valuable publishing platforms should be reserved for most valuable content, and letting all the crap copyright infringements and low-quality content to pass the gate is showing how badly youtube is doing their work of recognizing valuable content.

Rocky says:

Re: Riaa/MPAA position...

Valuable publishing platforms should be reserved for most valuable content, and letting all the crap copyright infringements and low-quality content to pass the gate is showing how badly youtube is doing their work of recognizing valuable content.

So how are you going to get videos of meshpage onto youtube then?

tp (profile) says:

Re: Re: Riaa/MPAA position...

So how are you going to get videos of meshpage onto youtube then?

Videos of interactive web content are not valuable enough. Noone wants to see a video of google search’s front page, even though google search is the most popular web site on the planet. So why would meshpage be forced to pass through a gate that even the most popular web sites cannot travel through?

When you impose arbitrary limits on what type of content you’re allowed to display, you get crazy stuff like making videos of search front page.

Meshpage is no different. The most valuable stuff is in the interactive part, where users can modify and play with the content properly, instead of just fastforwarding through it.

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