YouTube users upload millions of hours of videos a week. As with any user-generated content site, this also includes copyright-infringing content.
The file-hosting platform Uploaded faces similar issues. While it can be used to share legal files, some people use it to share pirated content.
This is a thorn in the side of several rightsholders, who argue that YouTube and Uploaded are liable for the infringing activities of their users. In Germany, this resulted in several lawsuits against the two platforms.
One of the cases was brought by music producer Frank Peterson, who sued YouTube and Google for making his music available without permission. In other lawsuits, copyright holders filed complaints against Uploaded’s parent company Cyando, accusing it of distributing pirated books.
EU Court Weighed In
German courts were undecided as to whether YouTube and Uploaded could be held liable for pirating users. The Federal Court of Justice, therefore, requested guidance from the Court of Justice of the European Union (CJEU).
In particular, the court wanted to know if, and under what conditions, online services make a ‘communication to the public’ when it comes to pirated files and videos.
Last summer the top EU court ruled that, in principle, online services are not directly liable for pirating users. When users share files, the online platforms themselves don’t automatically ‘communicate’ the infringing content to the public.
The ruling was good news for YouTube and Uploaded, but there are some strings attached. There are circumstances when the platforms can be held liable, including when they fail to “expeditiously” remove infringing content following a rightsholder complaint.
In addition, the EU court ruled that the platforms can lose their liability exception if they actively take part in the infringing activities or if they fail to take action despite being aware of them.
Platforms Can be Liable
Today, the German Federal Court of Justice issued a new order taking the EU guidance into account. The court clarified that online platforms can indeed be held liable if they fail to take appropriate action.
Last year, Germany also implemented the new EU Copyright Directive which requires online services to ensure that infringing content is taken down and not re-uploaded. If platforms fail to do so, they can be held accountable for damages.
The Federal Court’s decision opens the door to a potential liability ruling. Whether damages are indeed warranted depends on the situation, which will require review by the lower courts.
In essence, the courts will now have to decide whether the measures YouTube and Uploaded have taken in response to the reported copyright infringements are sufficient. As such, it will be among the first cases where the “upload filter” requirements of the Copyright Directive will be put to the test.