Hamburg District Court – GEMA v. YouTube (English Translation)

Transcript

Hamburg District Court

Reference number: 310 0 461/10

Rendered on 20/04/2012 by Reich, JAng

Court registry’s clerk of the court

JUDGEMENT

IN THE NAME OF THE PEOPLE

In the legal matter

Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA), represented by the executive board, which is represented by its CEO Dr. Harald Heker, Rosenhelmer Straße 11, 81667 Munich, Germany

-  Plaintiff -

Legal counsel:

Lawyers Lausen, Residenzstraße 25, 80333 Munich, Germany, signed: 02587/1OML/URH versus

YouTube LLC, represented by the chief executive, Chad Hurley, 901 Cherry Ave., San Bruno, CA 94066, U.S.A.

-  Defendant -

Legal counsel:

Lawyers Taylor Wessing, Am Sandtorkai 41, 20457 Hamburg, Germany signed: 1001887/11 due to copyright law

Hamburg District Court – civil chamber 10 – issues the following judgement by the Presiding Judge at Steeneck District Court,

Judge Dr. Heineke at the District Court and Judge Härders at the District Court

                        based on the oral hearing held on 16 February 2012:

Reference number: 310 O 461/10

1. If any fine stipulated by the court for each case of violation is avoided, and in the instance that recovery is impossible, the Defendant shall be condemned to a term of imprisonment or to a term of imprisonment not exceeding six months (each fine shall not exceed EUR 250,000.00, and the term of imprisonment shall not exceed two years in total) for allowing third parties to make the Plaintiff’s musical works publicly available

 

Creator

Title

Artist

1

Christensen,   Alex Joerg

Ritmo   de la noche

Chocolate

3

Christensen,   Alex Joerg

Night   in motion

U96

4

Lewerentz,   Hayo (Panarinfo, Hayo; Bauer Hayo; CKioni)

Club   Bizarre

U96

5

Zuckowski,   Rolf

Lieder,   die wie Brücken sind

Rolf   Zuckowski

6

Zuckowski,   Rolf

Im   Kindergarten

Rolf   Zuckowski

7

Dostal,   Frank

Lieder,   die die Liebe schreibt

Nana   Mouskouri

8

Reuther,   Franz (Farian, Frank)

Rivers   of Babylon

Boney   M.

 

­in the territory of the Federal Republic of Germany via the “YouTube” service.

  1. The remainder of the action shall be dismissed.
  2. The Plaintiff shall bear two-thirds of the cost of the legal matter and the Defendant shall bear one-third.
  3. The judgement may be provisionally enforced regarding the banning sentence in accordance with clause 1 against a provision of security of EUR 140,000 and otherwise against a provision of security of 110% of each amount which shall be enforced.

Statement of facts

The Plaintiff requests that the Defendant ceases and desists from making a total of 12 musical works publicly accessible in the region of the Federal Republic of Germany or having these made accessible through third parties.

The Plaintiff is the German discerning institution for the rights of use of copyright-protected works of music. It is representing a repertoire of approx. 8 million musical works.

The Defendant is an affiliate of Google Inc. and operates the “YouTube” video portal online. On this Internet platform, the Users can upload files with audio-visual contents (hereafter: “video clips” or “videos”). These video clips are subsequently made available for cost-free retrieval by other Internet Users. Several hundred million videos have been uploaded to the Defendant’s platform. More than a million videos are added daily. Every minute, more than 60 hours of new video material is uploaded. In addition, the uploaded video clips often contain music.

According to the Terms of Service, the videos may only be accessed by so-called streaming. Downloading the video clips is forbidden in accordance with the Terms of Service. A download function is not provided on the website. Users who want to upload videos to the platform have to sign up for a free User account. In addition, they must provide a User name and password of their choice, their email address and a birth date (cf. Annex K8). Further, Users must accept the Defendant’s Terms of Service (Annex K9). The User’s real name and address is not required.

In clause 9 of the Terms of Service, the following is determined, amongst other things:

9.3 You agree not to post or upload any User transmissions that are subject to third-party property rights (including confidentiality or personal rights), if you do not have a formal licence or permission from the lawful owner who allows the respective material to be posted and grants a licence to YouTube in accordance with clause 10.1 below.

9.4 YouTube reserves the right (but shall not be obliged) to decide whether User transmissions meet the content requirements as they are conveyed in these Conditions. YouTube may remove such User transmissions which violate these Conditions and/or block a User from gaining the necessary access to uploading User content at any time without prior announcement and at its own discretion.

In clause 8.2 of the Terms of Service, the following is regulated:

8.2. You retain all property rights for your User transmissions. Nevertheless, it is necessary that you acknowledge the restricted User rights of YouTube and other Users on the website. These are described in more detail under clause 10 of these Conditions (Rights that you acknowledge).

In clause 10 of the Terms of Service, the following is determined:

10.1 By uploading or posting User transmissions on YouTube, you grant

  1. YouTube a worldwide non-exclusive and fee-free licence (with the sub-licensing right) regarding the use, reproduction, distribution and production of derivative works, displaying and playing the User transmission in connection with making these services and others available and also in connection with making the website and YouTube’s commercial activities available, including, without limitation, advertising for and the onward sale of the entire or parts of the website (and derived works based on this) no matter the media format or the distribution channels;
  2. every User of the website a worldwide, non-exclusive and fee-free licence regarding the access to their User transmissions via the website as well as regarding the use, reproduction, distribution and production of derivative works, displaying and playing such User transmissions in the scope which is allowed due to the functionality of the website and according to these Conditions.

10.2 The above-mentioned licences granted by you for User videos expire as soon as your User videos are removed from the website. The above-mentioned licences granted by you for User comments are unlimited and irrevocable, but do not affect your above-mentioned property rights described under clause 8.2.

The Users may give their video a title and other keywords. The video can be found by third parties by entering the title or the keywords into the search function provided by the Defendant.

The Defendant shall provide a notification process, which can inform Copyright Holders on infringing videos which these Rightholders have located on the platform. In so doing, the affected video must be identified by specifying the video URL (“Uniform Resource Locator” = Internet address). The person reporting this must confirm that they are entitled and that the use is unauthorised. Refer to Annex B13 for more details. In the event of the video being subsequently blocked by the Defendant, also-called MD5 filter shall prevent a video that is identical in hash value from being uploaded to the website again.

In addition, the Defendant offers registered Users a programme for content verification, which allows Rightholders to locate contents with possible infringing contents using a search function on the platform so that they can then verify it themselves. Refer to Annex B14 for more details.

Further, the Defendant provides the Copyright Holders with a so-called content ID process which requires an Agreement with Google Inc. (Annex K19) or Google Ireland Ltd. (Annex B40) in order to use it. After the Defendant’s submission, this software, which the Defendant developed at a great cost, shall be able to identify existing and newly added video files on its platform which completely or at least partially correspond with the audio contents and/ or the visual contents of a previously selected reference file. This reference file, which may be an original recording of a particular work of music, for example, may be supplied by the Rightholder himself. However, the Rightholder can also call on a file which is already in the Defendant’s referential data base as a reference file or even activate a video as a reference file which has been uploaded to the platform. The software can be set by the User in such a way that only playing videos from a certain region is blocked (e.g. in Germany or worldwide). Rightholders also have the possibility of “monetarisation” by playing advertisements at the same time as the video and having the Rightholder involved in its release.

In the event that a video is blocked, the User who uploaded it shall be informed by e-mail by the Defendant in terms of the so-called dispute procedure. The Defendant exercises the rights of the parts of the uploaded video and in which region the block shall take place. The User shall be informed that he can object to the block. He shall be informed of the reasons why an objection may be authorised and why an objection may not be authorised. After this, if the User is of the opinion that the block was wrongfully put in place, he may object to the block and the video shall be instantly unblocked (initially). However, according to the Defendant’s statistics, this only happens in 2% of cases. If an identified video is unblocked by the respective User, the respective Rightholder shall be informed immediately and he shall be shown the reference file as well as the identified video. After investigating the User’s video, the Rightholder may re-activate the block if he is of the opinion that this action is justifiable. In this event, the User shall be notified again that he can request that the Defendant lifts the block, if he is still of the opinion that uploading the video was justified. However, this is only possible if the User informs the Defendant and the (alleged) Rightholder of his complete name and his summonable address. In particular, the User shall be made aware that the (alleged) Rightholder may take legal action against the User.

In addition, the Defendant shall work on developing a melody filter, which can identify melodies in uploaded videos. This filter is not yet available.

When the Plaintiff searched on 5-6 May 2010, it found a total of 258 works from its repertoire, including musical pieces 1-10 which are the subject of dispute here, in videos on the Defendant’s platform which contained these musical works. The Plaintiff found several videos per music title which contained this music.

The Plaintiff informed the Defendant in a letter dated 10 May 2010 of what it believed to be the unlawful public release of the 258 works on the Defendant’s platform. For each of the musical works, the URL of the video was named in which the work was contained (Annex Kl 5). As the author of the disclosed works “Night in motion” and “Ritmo de la noche”, Hayo Lewerentz was mentioned in the letter, amongst others. This letter was delivered to the Defendant by courier on 11 May 2010 at its headquarters in California.

As a result, the Defendant blocked videos which were specifically disclosed by URL. In addition, it activated the disclosed videos as reference files in its content ID programme without acknowledging a legal obligation after submission and thus blocked all music that corresponded with the reported video on its platform after submission.

The Defendant confirmed deleting the communicated links by email and telefax on 14 May 2010 and pointed out further possibilities for reporting and deleting infringing videos by using the content ID process (Annex Kl 9), amongst other methods. In addition, the current legal counsel also opposed the Defendant (Annex K20).

In the time between 25 May and 27 May 2010, the Plaintiff searched for videos on the Defendant’s platform which contained the previously communicated works. The Plaintiff once again found numerous videos which, in its opinion, contained the music titles 1-10 which are the subject of dispute here. Refer to Annexes K21 and K22 for the individually located videos.

With a letter dated 2 June 2010, the Plaintiff reminded the Defendant of the continuing availability of works 1-10, amongst others. It documented a video URL for every music title (Annex K24). As the author of the discussed works “Night in motion” and “Ritmo de la noche”, Hayo Lewerentz, amongst others, was once again mentioned in the Annex of the letter.

If the specifically stated videos in the reminder letter’s list of 2 June 2010 were accessible on receiving the letter, the videos were also deleted by the Defendant.  In addition, it once again activated the communicated videos as reference files in its content ID programme after submission without acknowledging a legal obligation and thus blocked all music that corresponded with the reported videos on its platform after submission.

The Defendant refused to release a cease and desist notification. A cease and desist obligation concerning musical works may not be put in place because compliance with it is factually impossible (Annex K27).

On 7 June 2010 at Hamburg District Court the Plaintiff requested the issue of a preliminary injunction together with seven other discerning institutions from other states. This injunction would forbid the Defendant from making the music titles 1-10 which are disputed here publicly available in the region of the Federal Republic of Germany (reference number: 310 O 197/10).

The Claimants at the time submitted a list of video URLs as an Annex Ast42 (=Annex B43) to the motion. In addition to the videos communicated in the reminder letter, these lists contained further videos which had been identified when researching on 25 May to 27 May 2010 which also contained the music disputed here after the Claimants’ submission. Annex Ast42 was described as follows: “Lists with all matches (URL) found by the software for the Claimants’ disputed works” (p. 46 of file 310 O 197/10).

The motion on 7 June 2010 was delivered to the Defendant’s legal counsel on 11 June 2010 along with its Annexes. When investigating the cited video URLs in Annex Ast42 on 27 July 2010, the Claimants determined that some of the video URLs in this list could still be accessed via the Defendant’s website after their submission. These videos which were still accessible were only blocked after discussing the Claimants’ demands to block the content in the oral hearing of the injunction proceedings on 29 July 2010 and subsequent correspondence (Annex B38, B39) on 2 August 2010.

The application for issuance of a preliminary injunction was rejected after oral hearing with the judgement on 27 August 2010 because the court considered the required urgency for a preliminary injunction to be prima facie.

Professor Christian Bruhn, composer of the two disputed musical works “Zwei kleine Italiener” and “Akropolis adieu” (works 11 and 12) informed the Defendant by email on 1 October 2010 that the two works were available as videos on the Defendant’s platform. He provided a URL for each via which each song could be accessed (Annex K17). At the Defendants’ request, he added to his data with a further email on 6 October 2010 (Annex K18).

The Defendant once again blocked the communicated videos. In addition, it also activated the communicated videos as reference files in its content ID programme after submission without acknowledging a legal obligation and thus blocked all music that corresponded with the reported video on its platform after submission.

When searching on 15 November 2010, a colleague on the Plaintiff’s side identified several videos on the Defendant’s platform which contained the two disputed musical works “Zwei kleine Italiener” and “Akropolis adieu”. Refer to the screen shots in Annex K23a and the storage medium in Annex K23b for the individually located videos.

 

The Plaintiff submits the following:

All of the musical works under dispute here are protected by copyright. As was indisputably accepted in the verbal negotiation, the Plaintiff holds the exclusive rights for the public release of the musical works under dispute. It represents the rights of at least one co-author of the disputed works. This is deemed sufficient to exercise the right of prohibition for these works.

The Defendant has interfered in the Plaintiff’s right to the public release of the works under dispute here. When searching on 5 May 2010 to 6 May 2010
, several videos containing the works 1-10 in question here were accessible on the Defendant’s platform (undisputed). Searches carried out between 25 May to 27 May 2010 revealed that a number of videos containing disputed works 1-10 were again accessible. This is also case for the disputed song “Ritmo de la noche”, which was written by Christensen and released in 1990 on a phonogram by the performers “Chocolate”. The public release of adaptations of the works also infringes the Plaintiff’s rights. In addition – and as is also undisputed – the two musical pieces under dispute entitled “Zwei kleine Italiener” and “Akropolis adieu” were contained in videos which could be accessed on the Defendant’s platform. Indisputably, videos containing the disputed songs entitled “Zwei kleine Italiener” and “Akropolis adieu” were also found to be accessible on 15 November 2010.

The public release via the defendant’s platform was deemed unlawful in the case of these disputed works. Neither the Users responsible for uploading the videos nor the Defendant had acquired the necessary rights for the public release of the works in Germany.

The Defendant is held responsible for this unlawful usage. In adopting videos onto its platform which can then be accessed, the Defendant is considered liable as a perpetrator. In any case, the presentation of the videos also gives the impression that they are the Defendant’s own. This is particularly evident from the following: Indisputably, the Defendant’s logo is displayed each time videos are viewed. The video has the effect of an offer from the Defendant. The User who uploaded the video remains anonymous. However, offering the anonymous use of the platform does not provide any interest which warrants protection. The defendant is said to utilise the desirability of the videos on its website in order to sell advertising, which is displayed extensively throughout the website. The more desirable the video uploaded, the greater the desirability of the platform, thus increasing the ability of the Defendant to generate advertising revenue. The uploaded content is managed and the content of the ‘offer’ prepared by the Defendant, whereby thematic categories including education, comedy, news etc., are provided for the User to select. The User is provided with video recommendations based on previous views. Categories such as “favourites” and “what’s new?” are also offered, hence manifest editorial controls are carried out. Absolutely no pornographic or explicitly right-wing extremist contents or contents which are otherwise covered by criminal law are to be found on the platform. This is considered prima facie evidence for editorial controls. Finally, the extensive user rights for the videos conceded by the Defendant far exceed the rights required for the running of the website.
The concession of user rights are serves to enable the extensive exploitation of the videos by the Defendant for its own economic purposes.

In any case, the Defendant is deemed liable as an interfering party. By operating the server to which video files are uploaded, it has provided the basis for the perpetration of rights violations. The Defendant also had the opportunity to prevent the violation of rights in question. This evidence is sufficient for the claim as an interfering party at the initial stage.

The Defendant failed to immediately delete all of the infringing videos of which it had received notice. The videos of which the Defendant received notice during the preliminary injunction procedure with Annex Ast42 for the motion dated 7 June 2010 were not immediately deleted. When investigating the cited video URLs on 27 July 2010, videos for seven of the disputed works 1-10 were still accessible on the Defendant’s platform. These videos had therefore not been immediately deleted following the notice given in Annex Ast42 with the delivery of the motion. The Defendant had been made aware of the Plaintiff’s request that all other videos containing the disputed works be blocked in the letter dated 10 May 2010 and the reminder letter of 2 June 2010. A further explicit request for the videos included in this list to be blocked was no longer deemed necessary.

The Defendant would have also had to install a word filter which filters the description for the video selected by the User to specific search terms. However, for logical reasons, only videos with titles containing the title of the works and the artists would have to be removed. If a filter is installed in this manner, this leads to a very high hit rate, making manual audio samples superfluous. In any case, users of the service provided by the Defendant would correctly identify the contents of music on a regular basis. They are not concerned with hiding their videos. It was technically possible for the Defendant to install a filter of this kind. Neither was there evidence for the extent to which the business model of the Defendant would be damaged in doing so. The right to block videos provided in the terms of use may be utilised by the Defendant both without notice and at its own discretion. This bears no risk.

Furthermore, the Defendant is responsible for running the Content ID program in order to block videos found to contain infringing material. The Defendant could activate the
video clips referred to in the informative letter per URL for use as reference files in the program. No unreasonable demands are being made if the Defendant is only using its own existing systems. The Plaintiff has not offered assistance. The Plaintiff is only required to clearly identify specific rights violations on the Defendant’s platform. Also, the Plaintiff is not in a position to obtain reference intakes for the musical works it represents. Use of the Content ID program alone is insufficient since it is only able to recognise identical sound recordings, whereas the Plaintiff may also lay claim to the protection of the works. In fact, the Content ID procedure is apparently unsuitable for tracing identical sound recordings. The sound recordings from the videos identified by the Plaintiff following the activation of the systems when searching between 25 and 27 May 2010 and documented in Annex K21 are largely identical to the recordings from the videos which were activated as reference files in the letter of 10 May 2010 (Annex KI 5).

The Plaintiff requests that,

If any fine stipulated by the court for each case of violation is avoided, and in the instance that recovery is impossible, the Defendant be condemned to a term of imprisonment or to a term of imprisonment not exceeding six months (each fine shall not exceed EUR 250,000.00, and the term of imprisonment shall not exceed two years in total) for allowing to make the Plaintiff’s musical works available or publicly available

 

Author

Title

Artist

1

Christensen,   Alex Joerg

Ritmo   de la noche

Chocolate

2

Cretu,   Michael

In   The Shadow, In The Light

Enigma

3

Christensen,   Alex Joerg

Night   in motion

U96

4

Lewerentz,   Hayo (Panarinfo, Hayo; Bauer Hayo; CKIoni)

Club   Bizarre

U96

5

Zuckowski,   Rolf

Lieder,   die wie Brücken sind

Rolf   Zuckowski

6

Zuckowski,   Rolf

Im   Kindergarten

Rolf   Zuckowski

7

Dostal,   Frank

Lieder,   die die Liebe schreibt

Nana   Mouskouri

8

Reuther,   Franz (Farian, Frank)

Rivers   of Babylon

Boney   M.

9

Christensen,   Alex Joerg

Sex   An Der Bar

Alex   C. feat. Yass

10

Kaiser   (DE 1), Alexander

1   feel like you

X-Perience

11

Bruhn,   Christian

Zwei   kleine Italiener

Conny   Froboess

12

Bruhn,   Christian

Akropolis   adieu

Mireille   Mathieu

 

in the territory of the Federal Republic of Germany, particularly through the “YouTube” service at www.youtube.com and www.youtube.de

In the alternative,

If the aforementioned regulation is avoided, the Defendant be condemned for allowing third parties to make the musical works of the Plaintiff listed above publicly available in the territory of the Federal Republic of Germany via the “YouTube” service.

The Defendant requests that

the action be dismissed.

The defendant submits the following:

The lyrics to the song “Rivers of Babylon” consist exclusively of two Psalms from the Old Testament, with no words added. In any case, the Plaintiff does not possess the copyright for the English version from the Old Testament. The title “Ritmo de la noche” is an adaptation of an existing title. The characteristic features of the title use identical characteristics from the 1977 song “I go to Rio” by Peter Allen.

The video entitled “Sex An Der Bar” named in the reminder letter of 2 June 2010 was no longer accessible at the time of receipt of the letter.

The videos containing the song “Ritmo de la noche”, which were found by the Plaintiff when searching between 25 and 27 May 2010 and documented in Annex K21, included one video and another recording, whilst the remainder of the videos contained other versions and remixes. It is contested that these other videos affect the rights of the Plaintiff to the original version.

It is also deemed unlikely that the Plaintiff has never granted any rights to any of the disputed works for use on YouTube. The Plaintiff submits no evidence for this matter.
The Defendant is not liable as a perpetrator on the grounds of its own use of the material. Indisputably, the aforementioned videos referred to in the informative letter and the reminder letter were neither created nor uploaded to the platform by the Defendant.

The Defendant never adopted these videos as its own. All users of the platform are aware that the videos contain material from third parties. It is a well known fact that the uploaded videos are not previously vetted in any way. Neither does the possibility to choose from the thematic categories provided by the Defendant amount to editorial controls. Videos are always allocated in the manner defined by the User who uploaded the video, and not by the Defendant. Without the categorisation of videos, the platform provided by the Defendant would rarely be used. Organising the contents according to topic in this manner does not constitute editorial control. There is a  “Flag as inappropriate” tab underneath each video, which the User can click in order to report any offensive content. Any pornographic or extreme right-wing contents are not detected by a filter, instead they are quickly reported by other Users and subsequently blocked. It is for this reason that this kind of content is rarely found on the Defendant’s video portal.

The presence of the Defendant’s logo only serves to identify the platform and is not designed so that the videos are assigned to the Defendant. The emblem is not used to an extent which exceeds normal usage for comparable services.

The Defendant only allows itself to concede restricted rights from the User; the sole purpose of which is to provide legal protection for operating the platform. The User is entitled to withdraw at any point by deleting contents from the platform. The possibility of economic exploitation on the part of the Defendant is therefore ruled out. In addition, videos uploaded by users are not allocated by the Defendant based on economic factors. No connected advertising was shown when displaying the disputed videos. The intention to generate advertising revenue is not deemed suitable criteria for ascertaining that the Defendant has adopted the videos as its own.

Neither is the Defendant liable as an interfering party. The conditions for this kind of liability have not been met with regards the Defendant. The Defendant deleted all of the contested videos immediately. The list submitted as Annex Ast42 during the preliminary injunction procedure does not in the least satisfy the requirements for carrying out a Prior Informed Consent (PIC) procedure. In addition, a block was not initially requested by the Claimants to this regard in the preliminary injunction procedure. The Annex Ast42 list was merely the result of a “software-
based search”. The results obtained from this search are unreliable and largely inappropriate. Samples reportedly showed that a large part of the videos on the system contained no infringing material whatsoever. Mr Meyerdierks, an employee of the Defendant, contacted the Plaintiff’s party following the verbal negotiations in the injunction proceedings and enquired as to whether the Plaintiff in fact requested that these videos be blocked.  When the answer was received, the videos were deleted immediately.

There is a lack of satisfactory concrete evidence for a rights violation with regards the song “Ritmo de la noche”. Hayo Lewerentz was named as the creator in both the informative letter and the reminder letter. However, following the first head of claim, Axel Joerg Christensen has been named as the creator.

In any case, the Defendant has not violated any reasonable obligations to carry out checks. Its business model was not created with the intention of promoting rights violations. With this, no advertising is carried out. The Defendant is unable to identify infringing contents without assistance from the author. It is not familiar with the Plaintiff’s works. The Defendant is also unable to assess the legal situation with any certainty.

The use of a word filter would be unreasonable and would have a detrimental effect upon the Defendant’s business model. The word filter is not able to recognise the actual content and legality of files. In addition, users do not always label their videos in terms of the title of the piece and artist. Users may also use different spellings. Users also often label contents inappropriately in order to attract more attention for their videos. For known titles in particular, a word filter would identify a number of results which would then need to be checked by listening and comparing these with the original version. Such manual monitoring by means of audio comparison would require a vast amount of time, staff and money, therefore it is unreasonable. Trials carried out by the Defendant show that there is invariably an error rate of 15% for the word filters referred to by the Plaintiff. This is the percentage of videos found using this kind of filter which would not contain the material in question.

If the Defendant were to use the Content ID procedure without any assistance from the Plaintiff, this would result in unreasonable encumbrances upon the Defendant. The Defendant would need to identify reference files, retrieve and establish the rules for blocking content, and it would need to manage and resolve disputes between the alleged copyright holders, which is not possible given its lack of knowledge of the legal situation in question. The Plaintiff would
also be requesting that its entire repertoire be managed worldwide. The communication expenses required to carry out the Content ID procedure would be huge without assistance from the Plaintiff. In contrast, it would be reasonable for the Plaintiff to search for infringing works using the available means. This would not entail additional expenses for the Plaintiff with regards the present procedure it has selected for notification from the Defendant.

For further information on the parties’ submissions, please refer to the contents of the brief and documents appended thereto along with the minutes of the verbal negotiation from 16 February 2012 (folio no. 416 et seq. of the court files).

Grounds

  1. The action is permissible. As the videos of the Defendant contested by the Plaintiff were also accessible in Hamburg, the local jurisdiction pursuant to section 32 of the German Code of Civil Procedure is the Hamburg District Court. The Plaintiff’s applications are also sufficiently precise. The concrete negotiations deemed necessary by the Plaintiff and which the Defendant is to carry out need not be named in the application to be made. It is not necessary to determine whether the request made by the Plaintiff in the application covers both the claim as an interfering party and liability as a perpetrator and whether it is sufficiently precise in this regard. In the verbal negotiations, the Plaintiff’s representatives explained in the appropriate applications that, first and foremost, the Defendant is claimed to be a perpetrator as well as an interfering party in part.
  2. The main application, which aims at condemning the Defendant as a perpetrator of the asserted infringements, is unjustified. The alternative application, which is based on liability as a co-liable party, is however justified to the extent apparent from the tenor. In accordance with section 97 I of the German Copyright Act (UrhG), the Plaintiff is entitled to allow third parties to make the musical works apparent from the tenor publicly available in the territory of the Federal Republic of Germany via the “YouTube” service.

I. According to section 2 I no. 2 II of the German Copyright Act (UrhG), the disputed compositions are protected by copyright as musical works. It is indeed possible that the disputed title “Ritmo de la noche” is an adaptation of the melody of the existing 1977 song entitled “I go to Rio” by Peter Allen. This is however irrelevant here, since a creative adaptation of an existing work is also protected by copyright
in accordance with section 3 of the German Copyright Act (UrhG). The corresponding song lyrics are also protected by copyright. The matter of whether the disputed song “Rivers of Babylon” is an exception is irrelevant. The lyrics are said to be oriented towards two Psalms from the Old Testament.  The accompanying music is however a personal intellectual creation, which is deemed sufficient for copyright protection.

  1. The Plaintiff is entitled to assert the right for public release in question here (section 19a of the German Copyright Act) for the disputed musical works. The locus standi of the Plaintiff with regards these musical works was indisputably submitted by the Defendant n the verbal negotiations of 16 February 2012.
  2. It is undisputed that the videos named in the letter of 10 May 2010 and the reminder letter of 2 June 2010 were made publicly available on the Defendant’s platform. Hence the music included in the videos was also simultaneously made publicly available. This constitutes an interference in the Plaintiff’s right to make the works under dispute here available to the public. This also applies to the song “Ritmo de la noche” by the composer Christensen, which was interpreted by the group “Chocolate” To the extent that the Defendant claims that the video for the song “Ritmo de la noche” (as documented in Annex K21 and identified by the Plaintiff in a further search at the end of May 2010) is a different musical recording and otherwise completely different versions and remixes, this cannot be accepted. Four of the videos documented in Annex K21 bear the title “Ritmo de la noche”, as can be seen from a visual inspection of Annex K22. These also include the video which was identified as being a violation of protected rights in the reminder letter of 2 June 2010. However, the music in this video is merely an extended version of the piece which was identified in the letter of 10 May 2010 (Annex KI 5). This therefore relates to the public release of another adaptation of the musical work named in the letter of 10 May 2010 (Annex K15). The right to use an original piece of work along with the right to use adaptations of the original by the composer Christensen in the territory of the Federal Republic of Germany are reserved exclusively for the Plaintiff. The public release of this music therefore constitutes an interference in the rights of the Plaintiff. In view of this fact, the matter of whether the rights of the Plaintiff to the original are affected by the music contained in the other three videos is irrelevant. In any case, in this case the Defendant itself accepts that these could be adaptations, recordings from third parties or remixes. In these cases, as
    explained above, the public release of the music contained in these three further videos would constitute an interference in the Plaintiff’s rights.
  3. Making the videos named in the information letter and the reminder letter accessible to the public and the music contained therein was unlawful. The burden of declaration and proof for the lawfulness of making the disputed musical works accessible to the public on the platform of the Defendant is the responsibility of the Defendant. The Defendant has pleaded nothing in this regard which could justify legality of the action of making the content accessible to the public.
  4. The Defendant is responsible for the legal infringements within the scope of the tenor for Figure 1.

1,            It is undisputed that the Defendant did not upload the videos with the disputed music works named in the information letter and reminder letter to her platform herself. This was performed by unknown users of her service without the knowledge of the Defendant. Neither does the Plaintiff take into account the liability of the Defendant due to her directly making the disputed music works accessible to the public.

  1. Neither did the Defendant appropriate the videos complained about by the Plaintiff and downloadable from the platform of the Defendant. From this perspective too, she is therefore not liable as a culprit.

An objective perspective of the basis of an overall view of all relevant circumstances is crucial for the evaluation of whether the operator of a website has appropriated the downloadable content. This depends on whether a prudent internet user gained the impression that the operator of the website also accepts contentual liability for the content of the site. Merely the circumstance that is recognisable that content does not originate from the operator of the website does not yet imperatively preclude the imputation of the content to the operator (cf. Federal Supreme Court, judgement of 12 November 2009, file ref.: I ZR 166/07 – marions-kochbuch, GRUR 2010, 616/618 Rz 23, 24, 27). Within the scope of the overall view necessary, it must be verified in particular whether the Defendant ensures editorial monitoring of the contents uploaded, whether the presentation type of the contents indicates that the Defendant is adopting these as her own, whether the videos which are the subject of the complaint belong to the editorial core content of the website and whether
the Defendant assigns the videos to herself financially, e.g. by conceding to herself comprehensive rights of use for her own commercial gain.

In accordance with these principles, the Defendant did not appropriate the videos notified in the information letter of 10 May 2011 and the reminder letter of 2 June 2010.

a) The Defendant did not undertake editorial monitoring of the videos loaded on her server.

aa) A contentual verification of the submitted contents for completeness and correctness, as undertaken by the Defendant in the ‘marions-kochbuch’ case ruled upon by the Federal Supreme Court, was not performed by the Defendant. Neither has a contentual exertion of influence exceeding the scope of compliance with the rights of use been specifically stated by the Plaintiff. The Defendant does not verify the videos uploaded by the users before their release. Due to the volume of videos constantly being loaded onto the platform of the Defendant, this would be almost impossible to accomplish. The Defendant subsequently exerts her influence on content to the extent that she deletes videos reported by users which contravene the conditions of use, such as offensive videos, from the platform. However, this type of monitoring necessary for the proper operation of a video platform falls far short of editorial monitoring for completeness and correctness of contents, especially as no contentual or thematic standards exist for user videos, especially with the exception of contents prohibited in accordance with the conditions of use.

bb) Neither do the thematic categories offered by the Defendant on her service to which users can assign their videos indicate that the Defendant appropriates these contents. From the perspective of a prudent internet user it does not arise on the basis of this structuring offer that the Defendant assumes contentual liability for the videos assigned to these categories if necessary. The Hanseatic Higher Regional Court has ruled that in the case of a video portal operator who does not verify the contents uploaded by users before their release, no actual and externally apparent assumption of liability occurs for the content if a structuring of the contents is undertaken (cf. Higher Regional Court Hamburg, judgement of 29 September 2010 – 5 U 9/09 – Sevenload, MMR 2011, 49). The recognising court follows this view. It is also known to the users that the further “structural services” provided on the Defendant’s website, such as the proposal of videos which may interest the user, are not services of natural persons but are only based on automatically­

 

executed probability calculations. The Plaintiff herself states that automated processes are involved.

b)  The presentation type of the videos specifically complained about by the Plaintiff does not indicate in the court’s opinion that the Defendant appropriates the contents. Indeed, the videos ascertained and documented by the Plaintiff were without exception presented on a website visually designed solely by the Defendant under the logo of the Defendant in each instance. However, in each case, the pseudonym of the respective user is specified underneath the video. In particular, the prudent internet user is aware that the videos uploaded to the platform of the Defendant regularly originate not from the Defendant, but from the users. The type of presentation selected by the Defendant changes nothing in respect of this opinion of a prudent internet user.

c)   An assignment of the videos ascertained and documented by the Plaintiff to ‘editorial core content’ of the webpage of the Defendant yields nothing. The website of the Defendant contains video clips from all spheres of life. Consequently, these constitute the ‘core content’ of the page. In this regard, the videos ascertained by the Plaintiff also belong to the ‘core content’ of the site. However, it must be pointed out that the nature of the Defendant’s webpage is also characterised by videos in which purely visual contents are the clear focus and which frequently contain no music at all. The site does not exhibit ‘editorial core content’ in the true sense as no editorial monitoring is performed by the Defendant.

d)   Insofar as the Defendant economically assigns the uploaded videos, this is only of low intensity. Economic assignment of the uploaded contents must be assumed in particular if the operator of the website concedes comprehensive rights of use to the uploaded contents in order to be able to use these contents personally for commercial purposes (cf. Federal Supreme Court, ‘marions-kochbuch’, aaO, Rz 26, 27). Indeed, in Section 10.1 of her conditions of use the Defendant concedes a global licence with the right to sublicensing for the comprehensive use of the uploaded videos, not only in conjunction with the operation of the website and by ‘businesses’ of the Defendant, but also for promotional purposes for the website. However, this is a licence which can be freely revoked by the user at any time as the licence expires as soon as the user removes his video from the website of the Defendant in accordance with Section 10.2 of the conditions of use. The licence conceded in favour of the Defendant thus offers the Defendant no secure legal position, which considerably restricts the economic value of the licence. Thus, only low ‘economic takings’ exist in respect of the user videos for the Defendant (cf. Higher Regional Court Hamburg, judgement of 29 September 2010, file ref.: 5 U 9/09 – Sevenload, MMR 2011, 49/50).

The circumstance that the Defendant does not operate her technically sophisticated service for not-for-profit reasons, but wishes to attain a profit therefrom, in particular by the sale of advertising space, is not sufficient in itself for the assumption of an economic assignment of the uploaded contents.

e)  Neither does the possibility conceded by the Defendant of anonymous use of the service provide an indicator that the Defendant appropriates the contents. In this regard, the Defendant can invoke Section 13 VI p. 1 of the German Teleservices Act (TMG). Pursuant to this, the service provider must enable the use of telemedia (and their payment) anonymously or under a pseudonym, insofar as this is technically possible and reasonable. The circumstance that the Defendant complies with this legal requirement cannot lead to the assumption to her detriment that she appropriates the uploaded contents to the anonymous users (cf. Higher Regional Court Ham­burg, judgement of 4 February 2009, file ref.: 5 U 180/07- Long Island Ice Tea – quoted according to Juris, Rz 53).

f)   Within the scope of the overall evaluation offered of the foregoing circumstances it cannot be ascertained that a prudent internet user would be given the impression that the Defendant accepts contentual liability for the videos ascertained and documented by the Plaintiff. The liability of the Defendant with the perspective that she appropriated the videos which were the subject of the complaint is therefore not assumed,

3. However, within the scope apparent from the tenor, the Defendant is liable as an interferer for the legal infringements described in the reminder letter of 2 June 2010 (Annex K24a+b).

Anyone who – without being a perpetrator or participant – deliberately and suitably causally contributes to the contravention of protected law can in principle be the subject of a claim for omittance in the contravention of absolute laws as an interferer in accordance with the jurisdiction of the Federal Supreme Court.

a) By the provision and operation of her video platform the Defendant has made an attributable contribution to the legal infringements described in the reminder letter of 2 June 2010. Supporting or taking advantage of the action of a third party acting on their own responsibility can also suffice as a contribution to the contravention of a protected law, insofar as the party who is the subject of a claim had the legal option of preventing this action (cf. Federal Supreme Court, judgement of 17 August 2011, file ref.: I ZR 57/09 – Stiftparfum, GRUR 2011, 1038 Rz 20 with additional supporting references). These pre-requisites are present with regard to the Defendant. Without the provision of her video portal, the disputed legal contraventions would not have occurred. The Defendant also had the legal option of preventing this action. She does not need to provide her service to everybody for use and she can remove user videos which contravene the conditions of use at any time at her sole discretion in accordance with Section 9.4 of her conditions of use. She can also block the user access necessary for uploading of user contents.

Insofar as the Defendant, with reference to the ruling of the Hanseatic Higher Regional Court ‘Cybersky’ (judgement of 8 February 2006 – 5 U 78/05, GRUR-RR 2006, 148) is of the opinion that she has not made an attributable interferer contribution, this is not effective. The ruling relates to the liability of an operator of a ‘Peer-to-Peer’ network as an interferer for abusive pay TV transmission. The Higher Regional Court explains in the ruling inter alia; “If a medium is provided that, in addition to its use as intended, can also be used for interventions into the rights of third parties, it essentially depends whether the legally contravening use does not lie outside of the realms of probability according to an objective view (Federal Supreme Court. GRUR 1965, 104 – ID card/tape recorder retailers II) and whether liability can justifiably be expected of the owner of the medium.” These pre-requisites exist with regard to the Defendant. The uploading of videos which contain legally infringing music is not a rare phenomenon by any means.

b) The Defendant has contravened the obligations with regard to monitoring and conduct incumbent on her.

As interferer liability may not unduly be extended to third parties who have not personally undertaken the unlawful impairment, the liability of the interferer requires the contravention of reasonable obligations of conduct in accordance with the jurisdiction of the Federal Supreme Court, in particular of verificatory obligations. Whether and to what extent a verification is to be expected of the interferer as the party who is the subject of a claim, depends on the respective circumstances of the individual case, taking into account his function and remit and with a view to the self-responsibility of the person who directly undertook the unlawful impairment personally (cf. Federal Supreme Court, GRUR 2011, 1038 – Stiftparfum, Rz 20 with additional supporting references). According to these benchmarks it is in principle not expected that the operator of an internet trading platform will examine every offer for possible legal contravention prior to publication on the Internet. However, if a clear legal contravention is pointed out to him, he must not only block the specific offer without delay, he must also take precautions to ensure that further such legal contraventions do not occur where possible (cf. Federal Supreme Court, GRUR 2011. 1038 – Stiftparfum, Rz 21,26).

These principles which the Federal Supreme Court established in relation to the infringement of brand rights on an auction platform on the internet, also apply to the copyright and the activity of the Defendant due to the comparability of the circumstances. It can make no difference for the legal evaluation in the point of departure whether sales offers of an unlawful nature or – as here – unlawful video clips were loaded onto an internet platform by third parties without the specific knowledge of the operator of this platform. Unlike the auction platform, which participates in the uploaded offers by user commission or fees, the Defendant does not obtain any fees from the users. Nevertheless, the Defendant has a great interest in ensuring that her platform is utilised by as many users as possible, as the advertising value of the site, and thus the Defendant’s revenue from advertising, increases. The attractiveness of the website is thus also increased by the fact that music recordings can be obtained free of charge there which would otherwise need to be purchased for a fee. In particular, in contrast to the auction platform it is possible to use the portal of the Defendant anonymously. The seller in an auction must also specify his contact details upon completion of a contract in any case as otherwise the purchasing contract cannot be transacted. In the case of unlawful goods offered for sale, the infringed party thus has at least a certain chance of being able to directly raise a claim against the infringing party. This option does not exist for rightholders in the case of legal infringements via the service of the Defendant. If the interferer liability principles described above apply to the operator of an auction platform, they must truly apply to the Defendant whose service can be utilised with complete anonymity. In particular, in the view of the Federal Supreme Court, which follows the recognising court, it constitutes a general legal principle, “that anyone who creates or allows a source of danger to persist in his area of responsibility must take reasonable steps and precautions necessary to avert the dangers resulting therefrom which may constitute a threat to third parties” (cf. Federal Supreme Court, judgement of 12 July 2007 – I ZR 18/04 – media on eBay posing a risk to young people eBay, GRUR 2007, 890 Rz 36). This principle also applies in the present case.

Contrary to the view of the Defendant, it cannot be derived from the judgement of the European Court of Justice of 16. February 2012 in the case C-360/10 (SABAM versus Netlog NV, Annex B48) that the Defendant was discharged from all monitoring obligations from the outset. In the initial proceedings the Plaintiff in this case applied to the Defendant in this case in the initial proceedings to surrender subject to a penalty payment, to refrain from any non-permissible provision of musical or audiovisual works from the SABAM repertoire immediately (Rz 21). The Court of Justice ruled on the referred questions that it was not permissible under EU law to demand that a hosting provider set up a filter system at his own expense and for an unlimited period of time, which would enable the information stored by the users to be preventatively filtered and which would be applicable to all these users indiscriminately. However, the present case involves another, not comparable, issue. The Plaintiff is not seeking preventative monitoring of all video clips uploaded onto the platform of the Defendant in respect of her entire repertoire. The Plaintiff is referring to the specific disputed music titles, in relation to which she has already notified specific infringements. In this respect, she is not seeking preventative monitoring.

aa) The Defendant has infringed her obligation to block specifically reported legal infringements on her website without delay.

The Defendant was properly notified by the letter from the Plaintiff of 10 May 2010 (Annex Kl 5) and the letter from the composer Bruhn of 1 October 2010 (Annex Kl 7) and the Annex Ast42 notified in the preliminary injunction proceedings of legal infringements on her platform. She was also properly informed of legal infringements by the reminder letter of 2 June 2010 (Annex K24a + b).

(1)  Although Hayo Lewerentz was named as author of the works “Ritmo de la noche” and “Night in motion” in the information letter (Annex K15), in actual fact Alex Joerg Christensen is the author of these works. However, this error in the information letter does not carry weight with regard to the effectiveness of the notification. The function of the notification of legal infringements is to put the operator of the internet platform in a position to locate those contents among the multitude of the contents uploaded on his platform without his knowledge which infringe the rights of the complainant (cf. Federal Supreme Court, GRUR 2011, 1038/1040 – Stiftparfum, Rz 28). This was also the case with regard to the works “Ritmo de la noche” and “Night in motion”. The works have been clearly individualised by the specification of the title and the respective interpreters. In particular, it was easily possible for the Defendant to locate the video which was the subject of the complaint due to the specification of the actual video URL.

(2)  With the Annex Ast42 (= Annex B43) delivered with the application letter in the preliminary injunction proceedings (file ref.: 310 0 197/10) the Defendant was advised of specific legal infringements. Beyond the videos named in the reminder, this list contained numerous other videos which were ascertained on the platform of the Defendant during the second search by the Plaintiff at the end of May 2010 and which contained
the disputed music works according to the pleading of the Plaintiff. Annex Ast42 was sufficient for notification of the Defendant with regard to the specific legal infringements. Notification of a legal infringement must not necessarily occur before institution of proceedings in accordance with the jurisdiction of the Federal Supreme Court. It can also occur via the institution of proceedings (cf. Federal Supreme Court GRUR 2011, 1038/1040 – Stiftparfum, Rz 28). The same must apply if notification is provided upon delivery of the application letter in the preliminary injunction proceedings. The notification was made so specifically that the Defendant could have easily identified the videos which were the subject of the complaint.

It was also recognisable for the Defendant that the Plaintiff also sought blocking of the links named in the Annex Ast42. Annex Ast42 was described in the application letter in the section entitled ‘Continued infringement of copyright-protected musical works’ as follows: “Lists with all hits found by the software (URLs) for the disputed works of the Claimants” (folio no. 46 of file 310 O 197/10). Although the Plaintiff did not initially explicitly demand that the Defendant also block the videos named in this Annex (numerous), the Plaintiff requested a blockage of all videos containing music from her repertoire as early as the preliminary injunction proceedings. The pleading of the Claimants was to the effect that the videos named in the Annex also contained music of the Claimants without authorisation. In view of this, the request for blockage was also clear without a specific demand. In actual fact, in the period which followed links were also blocked from Annex Ast42 which were neither named in the information letter nor the reminder letter.

In as much as the Defendant deems that the videos notified in Annex Ast42 had no legally infringing content, this pleading is immaterial. Because then the then Respondent and now Defendant would have been required to notify the Plaintiff of this doubt in good faith and demand appropriate proof of the alleged clear legal infringements in accordance with the circumstances (cf. Federal Supreme Court GRUR 2011, 1038/1040 – Stiftparfum, Rz 32). However, the Defendant failed to do so in respect of the videos adequately specified by the Plaintiff in Annex Ast42. Neither does the Defendant justify her objection in greater detail in relation to the disputed works.

(3) The Defendant has breached its duty to block the videos, which, it was clearly told, infringed the law, on its website for the area of the Federal Republic of Germany without delay. However, it blocked the videos named in the information letter of the Plaintiff and of the composer, Prof Bruhn, without contesting and without delay. The videos named in the warning (Annex K24a+b) were also blocked without delay. However, this did not happen with relation to all the videos named in Annex Ast42 on 11 June 2011. The Plaintiff itself reports that it could no longer access the in URLs of the videos named in Annex Ast42 which contained the these three titles that are matters in dispute in this case: “In The Shadow. In The Light”, “Sex An Der Bar” and “I feel like you”, on a test on 27 July 2010. With reference to these three titles the videos named in Annex Ast42 had therefore been blocked by 27 July 2010. In this respect, the Plaintiff also does not claim that the defendant has breached its obligation to delete without delay.

However, it is uncontested that the Defendant did not completely block the following seven further titles which are matters in dispute: (“Ritmo de la noche”, “Night in Motion”, “Club Bizarre”, “Lieder die wie Brücken sind”, “Im Kindergarten”, “Lieder die die Liebe schreibt” and “Rivers of Babylon”) which were named in Annex Ast42, on 27 July 2010, but did not block them until August 2, 2010. This can no longer be deemed to have been without delay. This infringement of the duty to block the videos named without delay, which resulted from the specific instructions gives grounds for the liability of the Defendant as an interferer in relation to the seven works named in the tenor.

bb) The Defendant has also not sufficiently fulfilled its duty to ensure that where possible there are no further infringements of rights. However, these breaches of obligations have not had any effects that give grounds for liability.

(1) The testing and control obligations that can be expected of the Defendant shall be determined within the scope of a proportionality test, in which all circumstances of the individual case as well as the affected interests and legal principles shall be weighed up against one another. No requirement may be thereby placed on the Defendant that makes their basically permissible activity disproportionately difficult.

According to the case-law of the Federal Supreme Court no controlling measures can be expected of the operator of an Internet auctions platform on which suspected cases of infringements of rights cannot be detected by filtering software. Therefore the operator must have filtering software available which can detect suspicious cases. The use of filtering software, “which, through the input of relevant search terms, finds suspicious cases that may then need to be checked manually”, is not, however, unreasonable from the outset, according to the case-law of the Federal Supreme Court. The boundaries of what is possible have however been reached when no characteristics are present that are suited for input into a search system (cf. Federal Supreme Court, case-law of 19 April 2007, Az.: I ZR 35/04 – Internet Auctions II, GRUR 2007, 708 Rz 47; case-law of 22 July 2010, Az,: I ZR 139/08 – Children’s High Chairs on the Internet, GRUR 2011, 152/155 Rz38, 39).

(2) According to the principles set out above, the Defendant can be expected to prevent future uploads by the use of software which contains a recording that corresponds to the musical recording that has been reported. On the one hand, as has happened, what is known as an MD5 filter shall be used; on the other hand, suitable software is available to the Defendant for these purposes, in the form of the content ID programme that it has developed. Insofar, the Defendant can be expected to enter every video that has specifically been designated as one that infringes upon rights as a reference file in the content ID programme and to block all future videos with any matching musical recordings that are uploaded, using this software, for the area of the Federal Republic of Germany. In connection with this, a system shall be installed that allows a direct clarification between the rights owner and the user in the case of the opposition of a user whose video is affected by the blocking. The dispute procedure used by the Defendant in such cases is – as far as can be seen – suited to this.

The burdens which accompany these obligations do not unduly burden the Defendant. The obligations described above do not require any content tests which exceed that which the Defendant is already currently implementing within the scope of the notification procedure which it offers. Any “hearing comparisons” of a contested video with a video which has been determined by the software to be consistent are equally as unnecessary as are legal tests.

The rights holders must not allow themselves to be referred to use the content ID programme that is provided by the Defendant themselves. According to the case-law of the Federal Supreme Court on the interference liability of the operator of an auction platform, a party that has been made subject to a claim must not only block the specific website without delay but also take precautions that the same kinds of trade mark violations do not happen again, after it has been made aware of a clear infringement of rights. This case-law is especially based on the general legal principle that everyone who creates a source of danger, or allows a source of danger to remain within its area of responsibility, must take the measures and preventive steps that can be expected of it and which are necessary for the prevention of dangers resulting from that which are threatening to third parties (cf. Federal Supreme Court, case-law of 12 July 2007, Az.: I ZR 18/04 – Media which are harmful to young people on eBay, GRUR 2007, 890 Rz 36). It would contradict the obligation of the Defendant to take its own precautions, if it could leave the use of the content ID system with regards to future uploads to the rights holders.

However, the Defendant is (only) legally obliged to the use of the content ID programme in relation to future uploads once it becomes aware of a specific infringement of rights. The Defendant is not obliged to reliably search through its entire data stock using the content ID programme. This is because the obligation to ensure that, if possible, further infringements of rights do not occur, applies to the future. The test and control duties of a person against which claims of being an interferer have been asserted only begin at the point of knowledge of a specific infringement of rights. Specifically, rights holders themselves can control the stock of videos on the platform of the Defendant. In order to do this, they can use the search function on the platform which is accessible to everyone or also the content verification system offered by the Defendant. Therefore it is not evident why the Defendant should take on a search of the data stock that is currently available on behalf of the Plaintiff when it becomes aware of relevant issues. A retrospective search of videos in the stock which is already available is therefore not due.

(3) The Defendant has the abovementioned duty to use the software in principle without infringement. Chiefly as regards a registered video, an infringement of the previously mentioned duty comes into question. This needs no explanation as it would not effect a corresponding breach of duty,

(a) The Defendant has argued that it produced for each named video reference file in the letter of 10 May 2010 by the Plaintiff without recognizance of the corresponding duty and these videos appeared in the content ID programme. It wants to prevent the future upload of identical files onto her platform. Furthermore it has carried out a so called Legacy Scan and blocked similar corresponding videos for Germany which had previously been uploaded. Also for both reported infringements in October 2010 corresponding to works 11 and 12 that were proceeding. The Plaintiff has denied these submissions at the first hearing, without providing any further explanations. Further submission by the Plaintiff in a pleading on 19 March 2012 is then to be interpreted that this denial is not to be maintained. The Plaintiff assumed in these pleadings that the Defendant used the content ID system corresponding to its submission and does not deny this (“…after content ID activation” [p. 3, folio no. 425 of the court files]; “According to page 25 of the pleading on 15th February 2012 the Defendant has used the content ID regarding the disputed works.” [p. 13, folio no. 435 of the court files]; “Despite prompt activation of the content IDs,..” [p. 14, folio no. 436]), Therefore the Plaintiff’s submission about its own activation of the content ID programme is to be considered as undisputed.

An inspection of the videos documented in Annex K21, which were found during the Plaintiff’s second search, found that all three of these videos were uploaded to the Defendant’s platform on 11 May 2010 before receiving the letter. As the Defendant is only under obligation, the videos referred to in the letter are to be activated as reference files in the content ID programme as controls for future uploads, the searchability of the videos, which chronologically were uploaded before the receipt of this letter, cannot be explained as a breach of duty. To fulfil the obligations it is sufficient if recordings were filtered out when the letter was first received, which complies with the communicated reference recording.

Also insofar as three videos documented in Annex K21 (and K22), which were uploaded onto the Defendant’s platform after receiving the letter on 11 May 2010, this should not result in further liability on the part of the Defendant, This pertains to the following videos documented in Annex K21:

Song Title

Directory in Annex K21

Subdirectory

Video Title

Date Uploaded

Club Bizarre

slc.gema…688

…530

“Club Bizarre [ U96 ]“

23.5.2010

Rivers of Babylon

slc,gema…062

…369

“Boney M. – Rivers Of Babylon”

13.5.2010

Im Kindergarten

slc.gema,..188

,..653

“Kinderlied Rolf Zuckowski Im Kindergarten”

15.5.2010

The Defendant is entitled to an adequate period of time to activate the content ID programmes after becoming aware of this. The Plaintiff has informed the Defendant in the letter of approx. 250 different URLs relating to the Plaintiff. On 13 May 2010 and 15 May 2010 videos with the disputed music were uploaded and can therefore still not be explained as a breach of duty. For these periods the Defendant is to be allowed to activate the content ID system that had not yet been completed. Only the unimpeded upload from 23 May 2010 could be objected to.

For what reasons the three videos could still have been uploaded to the Defendant’s platform after receiving the letter could be left aside. Regarding the three musical works that the Defendant is already responsible for as a co-liable party, insofar as it has not immediately been blocked regarding the videos in Annex Ast42.
Contrary to the submission of the Defendant it would not have been technically possible for the content ID software to filter out concurrent videos using the activated reference file. In view of the circumstances it is not apparent that the second search by the Plaintiff would simply have found the three aforementioned videos which were uploaded after receiving the letter.

(b) Also regarding the videos registered through Prof. Bruhn at the start of October 2010 no breach of duty exists for own use of the content ID system. The videos discovered during the new search on 15 November 2010 were all already uploaded onto the platform by the defendant before receiving the letter. This arose from the screen shots for the discovered video clips in which the date that the videos were uploaded is obvious (Annex K23a). As the duties of the Defendant only relate to uploads after obtaining knowledge about the rights infringement, the Defendant must by rights also not find the videos documented in Annex K23a.

(4) To reduce the number of undocumented infringements in the content ID, it is the opinion of the court that, in any case as far as it is about the rights of composers and songwriters, a word filter is to be installed. This further duty is necessary as the content ID programme can presently identify only undisputed audio recordings which are identical to the reference recording. From the reference recording the software cannot detect abnormal recordings of these same works, a specific studio recording of a work is activated as a reference file so that the software cannot locate the recording of a live performance of the same work. The rights of music authors do not exist for specific recordings but independent of a specific performance of an underlying musical work.

(a) The required word filter should filter out newly uploaded videos, whose title contains accumulatively the title and artists for the rejected video for the musical recording. As the title of the video as a rule also describes the actual content, a higher likelihood exists that a video identified by a title and artist also has this actual content. The Defendant has stated: “In addition the uploaded contents are traceable – in a different way to a file sharing system – using a directory structure and within the framework of having the option of a word search using a search function for each. Concealing listed contents did not occur – this is contrary to the purpose and development of the platform” (pleading of 25 July 2011, p. 16, folio no. 109 of the court files).

 

 

The Defendant is indisputably in the position to install such a filter for his platform. The Defendant claims to have attempted to set up appropriate filters.

As far as the Defendant contests that such a word filter video, which is not displayed with the search terms, but nevertheless contains the disputed music, was not found, this does not hold, as this case only affects the interests of the Copyright Holder, not those of the Defendant. However, the Plaintiff considers it sufficient that the complete working title and the artists are searched for, in order to avoid a large number of irrelevant results. It is economically and legally immaterial to the Defendant if actual infringing videos are not filtered out.

Indeed, it is possible that the files filtered according to these criteria have content, which infringes the rights of the Plaintiff nevertheless. It is possible, for example, that a User uploads his/her video entitled “Rolf Zuckowski im Kindergarten”, without it actually containing the disputed track “Im Kindergarten” by Rolf Zuckowski. In individual cases, it can also be difficult to judge in law and in fact whether the reproduction of the music in the video actually infringes the rights of the Plaintiff. The Plaintiff does not expect a comparison between the music contained in the video, which is contested by the copyright holder, and the music contained in the word filter video. The effort involved would be disproportionately large. A possibly related necessary legal assessment cannot be required of the Defendant, now more than ever.

In order to solve this problem, a procedure must also be linked for word filters to be installed in new uploads, as the Defendant already currently uses it as a ‘dispute procedure’ within the context of a content ID programme. If a User selects a title for his/her video as part of the upload process, which is also the title and artist of a disputed track, he/she should receive an automatic notification explaining that the chosen term refers to a track of which the Plaintiff owns the copyright, and consequently has not stipulated that it is publicly accessible. The User should be able to activate the video on the basis of this information if he/she ensures that the rights of the Plaintiff are not actually affected. At the same time, the link to the activated video should be automatically transferred to the Plaintiff. The Plaintiff would then be in the position to judge for herself whether the video has content, which infringes her copyright. In this case, the appropriate dispute procedure would proceed.

 

As with the obligation of having a personal content ID programme, the Defendant is only required to install the word filter from concrete information via copyright infringement for new uploads. In this respect, the reasons outlined above are to be respected. Furthermore, filtering the entire portfolio using the word filter does not ensure that the available dispute procedure can also be observed.

 

(b) European Law does not preclude the above described word filter. As long as the European Court of Justice (ECJ) sees the risk – in the judgement cited by the Defendants from 16 February 2012 in the legal case SABAM against net log BV (file number: C – 360/10) – that the filter being assessed would lead to an investigation and processing of protected personal data (paragraph 49), then it is not an issue in this case. The word filter only captures the already public name of the video file. The service of the Defendants contains no personal data of the Users anyway. Indeed, in relation to the decision, the ECJ sees the risk of impaired freedom of information “because there is a danger that the system could not sufficiently differentiate between unacceptable and permissible content, so that could lead to the use of the system for blocking communications with permissible content” (Point 50). Also the required word filter held here is not able to decide whether the filtered-out video actually contains music, whose playing is a violation of the rights of the Plaintiff. However, the risk of blocking permissible content is eliminated through the appropriate application of the dispute procedure.

 

(c)       Also the recent case law of the Hanseatic Higher Regional Court to the interference liability of a file-hosting service (Verdict. v. 14 March 2012, file number: 5 U 87/09) does not preclude the necessary held word filter here. This decision concerns a service where Users can upload any file from a Web site on a server of the provider. As an automated link is assigned to the User, the uploaded files can be recalled later. This link is only communicated to the uploader. Without knowledge of this link, it is almost impossible for other Users to retrieve the saved file.

 

In the above decision, the Hanseatic Higher Regional Court considers the practise of using a word filter to detect files with copyright-protected works no (longer) reasonable. Since according to the view represented now, the upload of a file on the file-host server does not cause public access to the file, rather only the publication of the link assigned to the User. The high-level store of files on the file-host server can also occur for legal purposes, possibly to store a permissible private copy of a copyright work for the purpose of “Cloud-Computing” externally. Therefore, at the time of uploading a file on a file-host server, it is not reliable to assess whether the respective User wants to publish the file later or just possibly save it for using for their own purposes at another time. Therefore, a word filter is unsuitable in an inquiry of uploads for unlawful purposes. According to the Provincial High Court and Court of Appeal, the file-host could be not entitled to delete files that bear a title in the file name, in order to prevent any further proliferation.

 

This argument cannot be transferred to the present case. Since the upload of a video on the platform of the Defendants serves from the start to make this video publicly accessible. This cannot be assumed with a permitted private copy. If a User uploading the video exceptionally determines that it should not be made publicly available on the platform, so such videos could be exempt from the filtering.

 

(5) From receipt of the written notices from 10 May 2010 concerning the works of 1 to 10 (annex Terminal 5) and of 1 October 2010 concerning the works of 11 and 12 (annex Terminal 7), the Defendants have not, contrary to their obligation, used the word filter in question. However, in this case this does not lead to any further liability on the part of the Defendants.

 

(a)       As already explained, up to three of the videos documented in Annex K21 and K22 were loaded on the platform of the Defendants before receipt of the written notice on 11 May 2010. In terms of the videos uploaded before receipt of the written notice, no infringement exists because the Defendants were not obliged to locate these videos. The fact that three videos are documented to have been loaded on the platform of the Defendants after the receipt of written notice on 5 November 2010, again bears no weight because, with regards to these titles, the Defendants are liable as the interrupter anyway.

(b)       Also in terms of the works referred to in the written notice of Prof. Bruhn as works 11 and 12, the omission of the installation of the necessary word filter does not lead to liability of the Defendants. The word filters indeed would have discovered the recorded videos with the search on 15 November 2010. Since their titles contain in each case the name of the respective artist and the title of the song. The videos discovered during the search on 15 November 2010 were all already loaded on the platform of the Defendants before the receipt of written notice from 1 October 2010. That is apparent from the screenshots found on Videoclips from which the date of the setting of the video is seen (annex K23a).

 

(c)       The violation of the obligation to install the described word filter has thereby not become causal for the infringements cited here by the Plaintiff (annex K23a). It is not justified to let the Defendants be liable due to the abstract violation of an obligation as an interrupter, which has not resulted in the specific cited violations. This would be contrary to the general principles of liability, as they in particular also form the basis of rights to damages (cf. Palandt-Grueneberg civil code 70th edition, prep v, article 249 paragraph 24 following).

 

VI. The danger of reproduction for the asserted omission claim is required concerning the so called Tenor works. The delivery of an omission obligation explanation with which the danger of reproduction could have been removed, had been rejected by the Defendants.

 

C.        The decision on costs follows from Article 92 I Code of Civil Procedure. As far as the Plaintiff has applied for a conviction of the Defendants as the perpetrators, the complaint is unfounded. The Defendants succeed in this case only with their aid proposal, which is based on a fault’s liability, and only with regard to the seven works referred to in the Tenor. The costs shall be distributed accordingly. The decision of the provisional enforceability is based on Article 709 Code of Civil Procedure.

 

 

 

 

 

 

Steeneck                                  Dr Heineke                                            Härders

 

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About gmriccio

Professor of Comparative Law. Lecturer of Copyright and Media Law. Of counsel at www.mazzetti-rossi.it
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