German court opinion reinforces growing gap between liability faced by US and European web hosts

Written by Tanaqui

German courts have indicated that they may force video hosting companies such as YouTube to proactively search out and delete music videos that infringe copyright, rather than requiring copyright holders and rights collection agencies to submit takedown notices before videos are removed.

This comes on top of the conviction last February of three YouTube executives in Italy where the ruling of the Italian court included a clear implication that every hosted video should be pre-screened.

Although German rights collection agency GEMA may have lost an application for an emergency order at the end of August 2010 asking for access to certain videos to be blocked, this is small comfort for German web hosts. The ruling was made only on the basis that an emergency order in itself was inappropriate, as GEMA had known for a long time that the videos were available on YouTube. The presiding judge in the case invited GEMA to ask for a ruling in regular proceedings, indicating their claim was likely to be successful in that event. He is reported as stating that “There are some good reasons to think that YouTube indeed has some duty to take care of detecting illegal uploads.”

GEMA indicated at the start of October 2010 that it does plan to file a new suit.

According to some legal observers, the opinion of the German court appears to be the latest of several examples of an emerging gap between the way similar laws are being interpreted in Europe and the US, where YouTube and other companies are covered by the “safe harbor” provisions of the Digital Millenium Copyright Act (DMCA). Web hosts based in Europe appear to be at greater risk of being held liable for users’ actions prior to receiving takedown notices.