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Euro court rules YouTube not automatically liable for users illegally uploading copyright-protected material

It has to take action on takedowns though, prelim ruling on long-running Sarah Brightman spat finds

Europe's leading court has partly sided with YouTube regarding copyrighted works posted illegally online in a case that touches on "profound divisions" in how the internet is used.

The case, Frank Peterson and Elsevier Inc. v Google LLC and Others, was first brought by German music producer Peterson against the YouTube platform in the German courts in 2009.

In 2008, a number of recordings of songs from the album A Winter Symphony by singer Sarah Brightman – which he claimed he owned various rights to – were posted on YouTube without his permission. Songs from live performances of Brightman's tour were also posted online.

Peterson had sought an injunction against Google and YouTube at the time.

An appeal court back then had held that although the platform "did not demonstrate the intent required in order to be liable as a participant" and "had no knowledge of the specific acts of infringement," YouTube was liable as an "interferer" (Störerin) because "although it had been notified of illegal activities relating to those works, it had not immediately deleted the content at issue or blocked access to that content."

The headlines from this week's court documents, however, make it clear: "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.

"However, those operators do make such a communication in breach of copyright where they contribute, beyond merely making those platforms available, to giving access to such content to the public."

The interpretation seems to be that if YouTube and others fail to take action if notified about such matters, they can be held liable.

The court also noted that its ruling was based on legislation before reforms to Article 17 of the copyright directive came into force in 2019.

This leaves the possibility that future interpretations made by EU courts may take a different line.

The long-running legal dispute was bumped to the EU's Court of Justice and in a detailed legal assessment of the case published last year, Advocate General Henrik Saugmandsgaard Øe said that the case revolved around the "extremely sensitive issue of the liability of online platform operators with regard to copyright-protected works illegally uploaded onto their platforms by their users.

"This issue is characterised by profound divisions. For some, online platforms allow large-scale copyright infringement, from which their operators profit to the detriment of the rightsholders, which justifies imposing on them extensive obligations to monitor the content uploaded to those platforms by users of their platforms. For others, imposing on those operators such obligations to monitor would significantly affect their activity and the rights of those users and would undermine freedom of expression and creativity online," wrote the attorney general.

The preliminary ruling found YouTube was not directly liable for copyright infringement on the platform since it had "put in place various technological measures in order to prevent and put an end to copyright infringements on its platform."

In a statement, a YouTube spokesperson said: "YouTube is a leader in copyright and supports rights holders being paid their fair share. That's why we've invested in state-of-the-art copyright tools which have created an entirely new revenue stream for the industry. In the past 12 months alone, we have paid $4bn to the music industry, over 30 per cent of which comes from monetised user-generated content." ®

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