[x-pubpol] GEMA vs YouTube

[Joly MacFie]

Lot of stories out there on this, I liked this one

---------- Forwarded message ----------
From: Monika <monika.bruss at googlemail.com>
Date: Fri, Apr 20, 2012 at 10:12 AM
Subject: [The 1709 Blog] YouTube needs a Monitor
To: 1709-copyright-blog at googlegroups.com




<http://3.bp.blogspot.com/-5AGnk5nZ0QE/TH5LBSkF8zI/AAAAAAAAADw/6tTKrOjQI3g/s1600/youtube-logo.jpg><http://2.bp.blogspot.com/-zQdqS6cPo68/TH5KZcA0K1I/AAAAAAAAADY/7cORvKK0T-U/s1600/gema_logo.gif>
 YouTube today lost a dispute before the Regional Court of Hamburg (LG
Hamburg) against German collecting society GEMA (court press release
here<http://docs.dpaq.de/695-310_o_461-10__urteil_vom_20.04.12.pdf>,
and some media reports
here<http://www.faz.net/aktuell/wirtschaft/urheberrecht-im-netz-youtube-verliert-gegen-gema-11724355.html>
, here <http://www.spiegel.de/netzwelt/web/0,1518,828774,00.html>,
here<http://www.heise.de/newsticker/meldung/Landgericht-YouTube-muss-Musiktitel-aus-dem-Netz-nehmen-1544381.html>
). YouTube was held liable under the principle of 'Störerhaftung'
('disturbance liability' - secondary liability for contributing to someone
else's breach of a third party's rights) and was issued with a permanent
injunction to take down a number of songs in which GEMA administers the
making available rights, and to ensure that the songs in question do not
reappear on the platform in the future.

 At the preliminary stage of the proceedings in 2010, the court had refused
to issue an injunction. The only reason for that was lack of urgency,
though, so today's judgment is hardly surprising. What is interesting,
however, is the rhetoric surrounding the case. Apparently, GEMA, YouTube
and the Bundesverband Musikindustrie (Federal Association of the Music
Industry) all expected great things from the judges.  According to an
article in the FAZ
(here<http://www.faz.net/aktuell/urheberrecht-im-netz-youtube-und-gema-hoffen-auf-hamburger-richter-11724199.html>),
they were all hoping for clarification of the complex legal area of
copyright, collecting societies and the Internet. What the court did do was
point out that, upon being informed of a particular infringement, YouTube
not only had to take down the file in question, but also use its Content-ID
program and a word filter to monitor possible future reappearances of the
respective song and take them down as well. Simply telling the copyright
owners to do their own monitoring for repeat infringements did not suffice
to avert liability.

 To my mind, the judgment is fair enough, but Internet forum reactions to
the judgment of course display the usual mix of cries over going back to
the digital stone age, Internet censorship, content mafia, etc. Personally,
while I admit to feeling a bit miffed when I want to watch a video on
YouTube and cannot because 'this content is not available in your country',
I have never had the impression that the ready availability of pop songs on
YouTube is a precondition for the pursuit of happiness in general and
freedom of speech and information in particular - but maybe I'm just weird
that way...

 In any case, it will be interesting to see whether YouTube and GEMA will
resume negotiations now and finally come to a sensible agreement, with or
without the help of the Arbitration Board under the Copyright
Administration Act (see
here<http://www.wipo.int/clea/docs_new/pdf/en/de/de079en.pdf>),
or continue their dispute through the instances for the next two to five
years - after which they will probably need to go to the Arbitration Board
anyway, which will then decide what a reasonable payment scheme would
be. Intriguingly, GEMA does have per-click payment schemes agreed with
streaming services Simfy and Deezer (see FAZ article
here<http://www.faz.net/aktuell/urheberrecht-im-netz-youtube-und-gema-hoffen-auf-hamburger-richter-11724199.html>),
which makes the assertions by YouTube/Google representatives that GEMA's
claims are ludicrously overpriced a bit less easy to believe.


--
Posted By Monika to The 1709
Blog<http://the1709blog.blogspot.com/2012/04/youtube-needs-monitor.html>on
4/20/2012 03:12:00 PM

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