(At the end the posting is a little bit longer than 200 words...). In a recent ruling by the District Court (“Landgericht”) Hamburg (Decision of September 3rd 2010, 308 O 27/09) the court assumed a direct responsibility of the video platform YouTube for publication of copyrighted content. This content had been uploaded by users of the platform on www.youtube.de (the German YouTube platform).
The judges dissent from former decisions of the same court (for example LG Hamburg 324 O 197/08, 324 O 565/08). In these decisions the court adopted liability of platform providers only if they had actual knowledge of the infringing action and failed to remove the infringing content in time. The latest dissenting decision would significant raise the risk for platform provider.
In this case, plaintiff is owner of various copyright protected materials. Users of the YouTube platform uploaded copies of the protected materials to the platform, for example video clips, pieces of music and artwork, and live recordings.
The court held that YouTube has adopted the user generated infringing content as its own. Thus, any privilege for ISPs is waived and YouTube is not only liable for omission but also for damages. At the end a non-exclusive license was YouTube’s undoing. YouTube’s users have to agree to a license allowing YouTube to use the uploaded content, this provision is necessary to run the service properly. But the Hamburg court assumed that this license grant causes YouTube to adopt the licensed content – even beside any promise of the users that the uploaded and licensed content would not infringe any copyright. On appeal of the Viacom law suit in the U.S., Viacom seems to argue on a similar base as the court in Hamburg (Appeal Brief page 52).
At least, the decision in Hamburg was made by a lower court and should now be on appeal (actually, there is no file number known at the moment). The District Court of Hamburg is known for its (sometimes) strange outcomes in lawsuits dealing with new technologies. But in another case the German Supreme Court (“Bundesgerichtshof”) affirmed a decision of the Hamburg Court of Appeal (“Hanseatisches Oberlandesgericht”) regarding another case related to user generated content (“Marions Kochbuch”, BGH I ZR 166/07, provider is liable for user generated content under certain circumstances).
At least, YouTube could maybe change its business model in a way that its users broadcast their own content using the technical platform/services of YouTube. That would prevent the necessity of a license and also reduce the contribution of YouTube to a true Hosting and Access Provider.
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