On an average day, roughly half a million hours of video are uploaded to YouTube. As with any user-generated content site, this also includes copyright-infringing content.
YouTube processes takedown notices and uses its Content-ID system to automatically remove allegedly infringing content to address this.
However, major copyright holders are not all happy with the platform’s efforts. Record labels want to see more compensation, for example, and others want YouTube to do more to prevent pirated videos from appearing on the site.
In Austria, this led to a lawsuit between the local television channel Puls 4 and YouTube. In an initial order last summer, the court ruled that the video platform can be held directly liable for users’ copyright infringements. YouTube was not seen as a neutral intermediary and should do more to prevent infringing uploads.
The court noted that YouTube takes several motivated actions to actively organize and optimize how videos are displayed. By doing so, it becomes more than a neutral hosting provider. Therefore, it can’t rely on a safe harbor defense.
“Through the connections, sorting, filtering and linking, in particular by creating tables of contents according to predefined categories, determining the surfing behavior of users and creating a tailor-made surfing proposal, offering help etc, YouTube leaves on the role of a neutral intermediary and therefore cannot claim the host provider privilege,” the court wrote.
YouTube disagreed with the ruling and appealed the matter at the Higher Regional Court of Vienna. The video service maintained that, as a neutral hosting provider, it’s protected under the safe harbor provisions of the Austrian E-Commerce Act.
After a careful review of the case, the Higher Regional Court of Vienna agreed with YouTube, overturning the previous order. According to the appeal court, YouTube doesn’t have an “active role” and is therefore shielded from liability through its safe harbor defense.
The Court doesn’t dispute that YouTube provides search, categorization, and advertising services. However, these are seen as part of the normal business model of hosting platforms, which do not make the company liable.
“If it had to forgo structuring and search options in order to avoid a damaging ‘appropriation’ of video content, its video platform would lose all user-friendliness,” the Court writes in its decision.
“The less users are able to find videos of interest to them amid the vast multitude of uploaded videos (several hundred million in this case), the less it would make sense even to visit such a video platform,” it adds.
Puls 4 cited the GS Media/Sanoma case, where the European Court of Justice ruled that posting infringing hyperlinks, during the course of business, can lead to liability. However, that doesn’t apply in this case, the Court notes, as YouTube wasn’t aware of the infringing nature of the videos.
In summary, the Higher Regional Court of Vienna concludes that, as a hosting platform, YouTube benefits from the safe harbor privilege. This means that it’s not liable for uploads of users and Puls 4’s complaint is dismissed as a result.
The outcome is good news for YouTube, as the order from the lower court severely threatened the operation of the video platform. However, it is not the end of the road yet.
Higher Regional Court of Vienna allows the case to be appealed at the Supreme Court and Puls 4 informs TorrentFreak that it will use this opportunity.
Puls 4 stresses that the current decision does not take into account relevant decisions of the CJEU, including the case regarding the infringing nature of The Pirate Bay. Nor does it reference the recent developments regarding liability under the proposed Article 13 of the EU copyright directive.
“Puls4 will therefore definitely file an appeal to the Supreme Court,” a company spokesperson informs TorrentFreak.
A German court referred various copyright infringement related questions to the European Court of Justice a few months ago. Since this involves YouTube directly, the Austrian Supreme Court will likely consider the pending outcome in this case too.
A copy of the Higher Regional Court of Vienna’s verdict is available here (pdf)