German Court: YouTube Doesn't Need To ID Uploader Who Didn't Profit From Infringement

from the someone's-not-going-to-like-that dept

Tue, Nov 22nd 2011 10:34pm — Mike Masnick

Thomas points us to the news of a recent, rather surprising copyright ruling in Germany, in which a movie distributor wanted to sue a user who had uploaded "large portions of the movie Werner Eiskalt." However, the court ruled that YouTube did not have to turn over the information, because the uploader did not distribute the films "on a commercial scale." The court apparently admits that this may have been infringing, but unless it's at a commercial scale, there is no requirement to reveal the uploader. Either way, it appears that YouTube took down the videos as soon as it was told about them.

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Filed Under: germany, infringement, privacy

12 Comments

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Anonymous Coward, 22 Nov 2011 @ 10:48pm

German courts are a mystery to me.
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Dr Evil, 22 Nov 2011 @ 11:45pm

German Courts
but we still have GEMA, and ve have vays to make you pay!
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That Anonymous Coward (profile), 23 Nov 2011 @ 12:38am

A court who actually considered if the infringement was commercial in nature or not, how novel.

Someone liked the cartoon enough to want to share portions of it, they shared the love with others. There was not this massive theft of cash like they want you to think there was, just someone wanting to share what they liked. The shame of this is, fewer people might be aware of the movie now.
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mike allen (profile), 23 Nov 2011 @ 1:03am

Pity you tube took them down i think the film may have been German (could be wrong on that). what annoys me about you tube is the removal of audio from a movie if a piece of music is chosen that fits the film ten that should be fine and allowed.
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Tor (profile), 23 Nov 2011 @ 1:30am

That's interesting.

This is based on a specific interpretation of the phrase "commercial scale" in the IPRED EU directive which applies to all EU countries. Here in Sweden the government took the approach to make the law such law that any illegal uploading is per definition said to be commercial scale.

The problem with "commercial scale" in IPRED is of course that it's never defined. Does it imply that one should distinguish between commercial / noncommercial or that one should distinguish between big scale / small scale. What about things done commercially on a small scale and things done noncommercially on a bigger scale? There are no answers.

When Sweden implemented IPRED into national law there were those who wanted to translate it into something like "for commercial purposes" - a phrase that was used elsewhere in the legislation and would give a certain consistency. But this was rejected on the grounds that since nobody really knew what "commercial scale" meant anything but a literal translation would create a risk that the law would differ from later case law developed in the EU.
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bob, 23 Nov 2011 @ 7:03am

Wow, what a wonderful deal for Big Search
Big Search takes the profits and some fall guy gets off on a technicality. And to think that Big Search has a huge population of people who are told that helping Big Search make money on infringement is cool and laudable. Wow. What a life. Build a robotic system and then strip mine the content world for your profit.
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Josef Anvil (profile), 23 Nov 2011 @ 8:13am

A thread of common sense
If only the US could understand that copyright laws are for the protection of companies and artists against COMMERCIAL distribution. Sharing is natural and actually helps the economy.

btw trolls, an ad banner on your site doesn't make it commercial distribution.
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Anonymous Coward, 23 Nov 2011 @ 8:44am

Re: Wow, what a wonderful deal for Big Search
"Big Search takes the profits"

Yes, because I'm sure Google makes a ton of money fighting this in court and taking down content and policing their content. Give me a break. Do you honestly think this was a profitable endeavor to Google? How much do you think it made from this video? Youtube makes almost all of its money from legitimate content and I'm sure the costs of policing its content far outset any money it allegedly makes from infringing material.
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Anonymous Coward, 23 Nov 2011 @ 8:54am

Headline is misleading (and completely contrary to source article)
You completely missed the point of the article it wasn't about whether money was gained (i.e. a commercial venture). The decision was based on the fact that the infringement was not a commercial scale. This is a very important distinction as it has huge implications. In other words, it doesn't matter if you make money or not, if you illegally distribute infringing content to some arbitrary number of people it could be deemed to be on a commercial scale. This seems to indicate that his judge does not see anything wrong with sharing content on small scales. So in Germany you are free to upload crap that no one wants to watch, but if you upload something people like you will be punished. The real question becomes, what is the magic number that constitutes "commercial scale".
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Anonymous Coward, 23 Nov 2011 @ 9:05am

Re: A thread of common sense
"an ad banner on your site doesn't make it commercial distribution"

There goes Google's entire business model.

One of the most profitable companies on the planet makes BILLIONS from ad placement and you claim it isn't commercial distribution. It is exactly that, distribution with commercials it doesn't get any clearer than that. Next you will claim that Spotify is not commercial distribution. The method of compensation may change but making money (regardless of who pays) from conent is commercial distribution. In ad-sponsored distribution models, the advertisers are paying the company (YouTube in this case, other examples are Spotify, Hulu, free network television, etc...) In paid-content distribution models, the end user pays the company (Apple, Amazon, Sony, Microsoft, etc...)

Just because a business model doesn't involve directly selling content does not mean that it is not comercial distribution.
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anonymous german, 23 Nov 2011 @ 10:29am

The term "commercial scale" is misleading. This term was coined by the lawmaker but was never actually defined so every court can come up with their own arbitrary definition of "commercial scale".

While this court decided that commercial scale depends on monetary gain, a bavarian court decided in a different case, that filesharing of more than a few tracks of an album is enough to constitute commercial scale.

So, the term commercial scale is entirely made of rubber and can mean everything and nothing.
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Anonymous Coward, 24 Nov 2011 @ 9:39pm

Re: Wow, what a wonderful deal for Big Search
The movie was taken down. Policing was performed and content taken down before irreparable (I use the term sparingly) damage was done. What's your point? Do you still want a pound of flesh from someone?

Now you just look angry, irrational, and... oh wait. That's how bob always looks.
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