YouTube not liable for hosting infringing works, CJEU clarifies
Online media hosting platforms do not make a “communication to the public” of content, therefore are not liable when illegally posted copyrighted content is uploaded, the Court of Justice of the European Union clarified yesterday.
The court ruled on two cases, the first concerning a music producer bringing action against YouTube and Google for hosting copyrighted material in the Regional Court, Hamburg, Germany.
The producer, Frank Peterson, sought an injunction, disclosure of information and a declaration that both YouTube and Google would be liable to pay damages for hosting content that infringes on IP he owned.
The second case was brought by publisher Elsevier, which filed a suit against file-hosting website Cyando in German courts for hosting its copyrighted books.
While uploaders of the copyrighted material are liable for ‘communication to the public’ of the infringing work, both Peterson and Elsevier wanted the onus extended to the hosting platforms.
But the CJEU ruled that hosting the content does not make a ‘communication to the public’ of that content unless it “contributes beyond merely making that platform available”. The ruling was consistent with the court’s prior decisions of communication to the public under Article 3 InfoSoc Directive 2001/29.
The court said in a press release: “As currently stands, operators of online platforms do not, in principle, themselves make a communication to the public of copyright-protected content illegally posted online by users of those platforms.”
Additionally, the CJEU also ruled that Article 14(1)(a) of Directive 2000/31 “must be interpreted” to mean that an operator must have knowledge of specific illegal acts from its users in order to be liable.
Active or passive role?
The ruling gives guidance on what constitutes playing an ‘active role’ in piracy but has not “decided the matter once and for all,” according to Nils Rauer, partner at Pinsent Masons.
“The core question is and remains whether the platform takes a rather passive role (no liability) or in an active role (liable) in these situations. There is a fine line between those two roles,” said Rauer.
“Notably, we can already digest from the press release that the failure to put in place ‘appropriate technological measures that can be expected from a reasonably diligent operator in its situation in order to counter credibly and effectively copyright infringements on that platform’ can trigger the platform’s liability.
“So, it is consistent to say that an active role can also be assumed when a service provider fails to become active and to create an environment that is technically capable and suitable to eliminate illegal content uploaded by the users.”
Case history
In November 2008, Peterson filed cease-and-desist declarations against YouTube and Google after finding works taken from the album “A Winter Symphony” by Sarah Brightman—which Peterson held the distribution rights to—hosted on the website.
YouTube obliged and took down the offending videos, but a few weeks later, audio recordings could still be found on the site, leading Peterson to seek legal action at the Landgericht Hamburg. The court upheld the case in September 2010 in relation to three of the works in dispute and dismissed the remainder of the action.
When it was brought to the higher regional court in Hamburg in 2015, the judgment was reversed in part, ordering the defendants to prevent third parties from making media from the album available to the public.
Meanwhile, Elsevier notified in January 2014 that three of its works could be found on the uploading platform. The publisher then brought a case against Cyando in Munich, requesting that a prohibitory injunction be issued against Cyando.
In 2016, the Landgericht München court issued the injunction ordering Cyando to cease infringing copyright of the three works. The decision was appealed to the higher regional court, which classed Cyando as an “interferer” but ruled that Elsevier could not pursue a claim against Cyando as a “party infringing the rights of copyright”.
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