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 operatorís 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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    The eejit (profile), Nov 8th, 2010 @ 7:03am

    Holy crap....

    Some common sense rulings?!?!!!?!?!

    Well, let's see how long it is before someone grandstands that Germany isn't being 'tough enough' on infringers.

     

    reply to this | link to this | view in thread ]

  2.  
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    A Dan (profile), Nov 8th, 2010 @ 8:20am

    Incendiary comments (including against Germans)

    Can you point us to some of these? I'm curious what sorts of things offend people. It would be particularly funny if something sarcastic or satirical were misinterpreted (heh) as serious and offensive.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    out_of_the_blue, Nov 8th, 2010 @ 8:27am

    Devil's Advocate, playing merry Hob.

    An argument for how the content mafia can require enforcement of copyright and incidentally help directly "monetize" the web.

    Whoever makes a (autonomous, unguarded) machine available that serves the purpose of copyright infringement -- without an actual contract, simply free for anyone to use at will, as *is* the current case since alleged "Terms of Service" are unenforceable except to block an IP address -- is thereby enabling and even *subsidizing* (presumably for *profit* too) any infringement that occurs using such machine.

    If the above is conceded, then web sites would have to start making actual contracts with users, and for *consideration*, to shift the liability to users.

    I'm not exactly *for* the above, but it's the only way I see the situation *actually* working out so long as copyright isn't completely done away with (which I don't want, but must be *restored* to pre-1970s time periods, the current forever and increasingly draconian undermines all legitimacy).

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 8:45am

    Re: Devil's Advocate, playing merry Hob.

    That argument is as bizarre as arguing that the owner of a shopping mall is responsible for a shooting within its premises.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    Xander C (profile), Nov 8th, 2010 @ 8:46am

    Re: Holy crap....

    Calm down there little buddy! That comment may get Mike arrested in Germany due to the incitful nature of the world "grandstand" in context of Germany!

     

    reply to this | link to this | view in thread ]

  6.  
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    Hephaestus (profile), Nov 8th, 2010 @ 8:52am

    Re: Devil's Advocate, playing merry Hob.

    What would be a kick in the pants would be a distributed version of the piratebays database. Where each bit torrent client holds a gig or so of torrent info replicated out over the whole network. Throw in onion routing and encryption for good measure and good luck trying to shut something like that down esp if it also searches.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    out_of_the_blue, Nov 8th, 2010 @ 8:54am

    Re: Re: Devil's Advocate, playing merry Hob.

    ... where the shopping mall puts out guns and free ammunition.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 9:05am

    On a unrelated note, time for ad-block?

    Logged on to Techdirt today and greeted by three separate flash ads for Windows Mobile at once. Slowed my computer to a crawl and effectively makes Techdirt unreadable.

    And no, I don't feel a strange sensation to suddenly by a Win 7 phone.

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    Chuck Norris' Enemy (deceased) (profile), Nov 8th, 2010 @ 9:12am

    Re: On a unrelated note, time for ad-block?

    Ha! Ha! Ads...really?

     

    reply to this | link to this | view in thread ]

  10.  
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    Jimr (profile), Nov 8th, 2010 @ 9:18am

    If it takes a court, and an epic battle of lawyers, to determine if single item infringes on a copyright how on Earth could even a single person make that determination not to mention any possible automation of the process by a third party.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 9:29am

    Re: On a unrelated note, time for ad-block?

    What's an ad?

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Ryan Diederich, Nov 8th, 2010 @ 9:33am

    Hmmm

    I am please to see courts starting to get the message. It wont be long before everyone feels this way.

    Big corporations may be able to influence government, but it is the legal obligation of the courts to overturn laws that they dont feel are correct.

    They cant influence every judge on earth, and once the old ill-informed ones die off, everything should be fine.

    The Windows Phone ads did take over the site, but for me they werent flashing, nor did they affect my speed at all (IE8).

    I really like the new comment system, there have been so many posts that I just wished there were a "like" button next to. Dont do that though, Facebook will sue you.

     

    reply to this | link to this | view in thread ]

  13.  
    icon
    Mike Masnick (profile), Nov 8th, 2010 @ 9:46am

    Re: On a unrelated note, time for ad-block?

    Logged on to Techdirt today and greeted by three separate flash ads for Windows Mobile at once. Slowed my computer to a crawl and effectively makes Techdirt unreadable.

    And no, I don't feel a strange sensation to suddenly by a Win 7 phone.


    Ugh. Agreed. We're looking into getting those ads pulled.

    Sorry about that.

     

    reply to this | link to this | view in thread ]

  14.  
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    Berenerd (profile), Nov 8th, 2010 @ 9:49am

    Re: Re: Holy crap....

    careful. the fact that you are sticking up for germany when they can protect themselves might be taken as an insult stating that you feel that they can't take care of themselves...

     

    reply to this | link to this | view in thread ]

  15.  
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    scarr (profile), Nov 8th, 2010 @ 10:46am

    Re: Re: Re: Holy crap....

    Do you think the Germans are incapable of pointing this out themselves?

     

    reply to this | link to this | view in thread ]

  16.  
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    nasch (profile), Nov 8th, 2010 @ 12:15pm

    Re: Re: Re: Devil's Advocate, playing merry Hob.

    The analogy to the guns and ammunition would be the copyrighted content, right? So the mall / server operator doesn't supply those.

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    Killer_Tofu (profile), Nov 8th, 2010 @ 12:50pm

    Re: Re: On a unrelated note, time for ad-block?

    I second this question.
    It was time for ad-block back in 2000.

     

    reply to this | link to this | view in thread ]

  18.  
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    nasch (profile), Nov 8th, 2010 @ 1:04pm

    Re: Hmmm

    There should be insightful and funny buttons.

     

    reply to this | link to this | view in thread ]


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