Another Error By US Officials May Kill Megaupload Prosecution

Huh? Totally Clueless German Court Says ContentID Isn't Good Enough, YouTube Must Block Infringement By Keywords

from the total-failure dept

Fri, Apr 20th 2012 12:45pm — Mike Masnick

We've discussed a few times the legal fight in Germany between YouTube and the overbearing collections society GEMA. German law is a bit bizarre in that it has very little regard for secondary liability protections, and often seems to default to blaming third parties for the actions of their users. On top of that, GEMA is incredibly powerful and controlling in Germany. When I was there a few years ago (in part to discuss this case), I had musicians explaining to me that they had "secret websites" because GEMA wouldn't let them offer their own music for free. The GEMA/YouTube dispute centers around the fact that GEMA wants YouTube to pay a fixed fee every time a video that includes a GEMA-covered song is played (and GEMA has actually suggested the fee for each stream should be identical to the cost of a download -- no joke). After suing YouTube/Google, GEMA refused to negotiate, making Germany the only modern country in the world in which a collection society didn't work out a deal with YouTube (and meaning that Google started blocking tons of music videos in Germany).

Unfortunately, the court has now ruled in the case, and the results seem ridiculous. It has said that YouTube is liable when users post videos (third party liability concepts still just don't make sense to German courts). Even more ridiculous, however, is that the court has said that YouTube's famous ContentID system is not enough. Instead, it must also install a keyword-based filter to block GEMA songs from being uploaded. Keyword-filters? Really. We've done this before a bunch of times and it doesn't work. At all. Keyword filters are really stupid ways to deal with these kinds of things. First off, they tend to block all sorts of legitimate content. But, more importantly, users figure out how to get around them in less than an hour. They just start coming up with easy-to-decipher substitutes. Comparing a keyword filter to ContentID is like comparing a human strapping on wings to a modern fighter plane. One of them works and can actually get the job done. One of them just makes you look like an idiot.

The only "concession" the court appears to have given YouTube is that it only expects such filtering to work going forward, rather than having them search the archive. That, of course, is barely a concession at all. If I remember correctly, this particular court, in Hamburg, is somewhat notorious for siding with copyright holders, so I wouldn't be surprised to see an appeal on this case...

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Filed Under: contentid, filtering, germany
Companies: gema, youtube

64 Comments

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Colin, 20 Apr 2012 @ 12:57pm

I hope Google just blocks YouTube from Germany. Maybe that would shed some light on this ridiculousness.
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- Anonymous Coward, 20 Apr 2012 @ 1:00pm
  
  Re:
  Not only Youtube but also google.de...
  
  (it worked with sopa after all...)
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- Atkray (profile), 20 Apr 2012 @ 1:02pm
  
  Re:
  a knee jerk response, but a good one.
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- Chris Rhodes (profile), 20 Apr 2012 @ 1:30pm
  
  Re:
  Exactly.
  
  "YouTube is not available in Germany due to GEMA's massive sense of entitlement and technological cluelessness. Please tell them what you think about their nonsense by contacting them at:"
  [ link to this | view in chronology ]
  - techflaws.org (profile), 20 Apr 2012 @ 11:12pm
    
    Re: Re:
    This is what's shown already, when you try to access a video GEMA did not license: "This video is not available in Germany since it might contain music not licensed to us by GEMA. We're sorry."
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    - Anonymous Coward, 27 Sep 2012 @ 12:44pm
      
      Re: Re: Re:
      yes, and notice it says "might contain", not "contains"...
      [ link to this | view in chronology ]
Machin Shin (profile), 20 Apr 2012 @ 1:03pm

I think it is about time for laws to be passed saying courts cannot rule on anything until it is proven those running the court actually understand whats going on. The court systems are old and outdated.

Long gone are the days that court cases were simply two farmers fighting over who owns a cow. The cases now are complicated and deal with many topics we cannot expect all judges to understand. Judges simply cannot be computer experts, chemists, biologists, engineers, and pharmaceutical experts.

The system need to be updated to account for the nature of modern cases.
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- Chosen Reject (profile), 20 Apr 2012 @ 1:12pm
  
  Re:
  The problem with your idea is that gone are the days where laws are simply to say who owns a cow. The legislators you would task to implement this "knowledgeable court" law are just as stupid and clueless if not more so. It's a big reason why we're in this mess to begin with. If legislators (German in this case, but it's applicable anywhere) had not created laws wherein they take away people's natural right to copy and share, then the judges wouldn't be faced with having to decide these issues.
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  - Mat C, 21 Apr 2012 @ 1:31pm
    
    Re: Re:
    First off all there is no such thing as a natural right to copy and share copyright protected material. Secondly according to German law the copyright belongs to the composer. Youtube/Google is earning billions of dollars with content that has been created by musicians, artists, composers and so on. And google wants to get this material practically for free. the GEMA represents German composers. And of course these composers want their share of the money that google is making using their content. I think the GEMA needs some changes, but I love the GEMA for not letting itself get ripped of by a company (google) that has so much more power and money to run a worldwide anti copyright campaign than the GEMA will ever have. Google is Goliath and the GEMA is David in this case.
    [ link to this | view in chronology ]
    - Chosen Reject (profile), 21 Apr 2012 @ 2:48pm
      
      Re: Re: Re:
      Whoa whoa whoa. Hold on. You think you don't have a natural right to copy and share anything with anyone? The default (before laws said to the contrary) is that you could copy and distribute at will. It's only been in the last few centuries that governments have tried to take away that natural right. Take this quote from Pliny the Elder:
      In comparing various authors with one another, I have discovered that some of the gravest and latest writers have transcribed, word for word, from former works, without making acknowledgment.
      Copying has been going on for millennia. Copyright doesn't grant a new right to a copyright holder. Instead, it makes exlusive a right they already have because everyone already has it. The only way to make it exclusive is to remove the right to copy and distribute from everyone else. Let me repeat to make myself clear, copyrights do not grant a new right to the holder, it takes away rights from everyone else. When you get a copyright the government is telling everyone that they are not allowed to copy the work covered. That's why it's so important to make sure we aren't unnecessarily abrogating everyone else's rights without good reason.
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    - Anonymous Coward, 23 Apr 2012 @ 2:26am
      
      Re: Re: Re:
      Sneaky troll is sneaky.
      [ link to this | view in chronology ]
    - Anonymous Coward, 4 Dec 2012 @ 6:54pm
      
      Re: Re: Re:
      You do realise that GEMA is blocking all sorts of videos without checking to see if the person who uploaded them has the right to do so.
      
      You could buy the worldwide rights to a Sony Music Entertainment song, and upload it to YouTube (as is your good right if you buy the rights) and GEMA will still block it, because they do not care if you have a license or not. They just see content they want money for and will remove anything they want to.
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ChurchHatesTucker (profile), 20 Apr 2012 @ 1:06pm

Keywords?
German musicians should just start making songs with titles like, oh I don't know, "GEMA." Or even better, "Geburtstag."
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Anonymous Coward, 20 Apr 2012 @ 1:17pm

Courts are sooo dumb. If only they were super-smart like Mike Masnick! Think how great the world'd be if everyone was like Mike! Perrrrrfect! YAY!
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- Glen, 20 Apr 2012 @ 1:26pm
  
  Re:
  How old are you? I get the feeling you need your parents permission to be here.
  [ link to this | view in chronology ]
  - Niall (profile), 23 Apr 2012 @ 5:00am
    
    Re: Re:
    I think my three-year-old could make a smarter post. And he can't even type!
    [ link to this | view in chronology ]
- Anonymous Coward, 20 Apr 2012 @ 1:27pm
  
  Re:
  Your analysis of this article is very poor indeed. I feel stupider having read your comment.
  [ link to this | view in chronology ]
- The eejit (profile), 20 Apr 2012 @ 1:32pm
  
  Re:
  Well, it'd be a damn sight simpler than it is now. And that would be because of economic Darwinism, rather than oligopolistic measures.
  [ link to this | view in chronology ]
- Anonymous Coward, 21 Apr 2012 @ 12:38am
  
  Re:
  Your analysis of this article is very poor indeed. I feel stupider having read your comment.
  [ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 20 Apr 2012 @ 1:17pm

" If I remember correctly, this particular court, in Hamburg, is somewhat notorious for siding with copyright holders, so I wouldn't be surprised to see an appeal on this case..."

Wow, Mike you are one hell of a sore loser. Suck it up, buttercup, there is more coming.
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- Chris Rhodes (profile), 20 Apr 2012 @ 1:34pm
  
  Re:
  "Suck it up, buttercup, there is more coming."
  
  Speaking just for myself, I can't wait until IP maximalists have completely destroyed everything the internet has made possible. Then, people will either wake up, grab their pitchforks, and string the Big Content fatcats up by their necks, or they'll remain cattle and always wonder why the class divide seems to get wider and wider.
  
  Either way, we'll know what people are really made of.
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  - :Lobo Santo (profile), 20 Apr 2012 @ 1:38pm
    
    Re: Re: Ask a silly question...
    "Either way, we'll know what people are really made of."
    Psh, that's easy. They're made of meat.
    [ link to this | view in chronology ]
    - Niall (profile), 23 Apr 2012 @ 5:10am
      
      Re: Re: Re: Ask a silly question...
      As opposed to being Silent Greens. Wait, I've never heard a Green being silent...
      [ link to this | view in chronology ]
  - Nathan F (profile), 20 Apr 2012 @ 3:37pm
    
    Re: Re:
    "Then, people will either wake up, grab their pitchforks, and string the Big Content fatcats up by their necks, or they'll remain cattle and always wonder why the class divide seems to get wider and wider."
    
    Ohh.. lolbigcontentfatcats.com the next big thing on the web!
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- Anonymous Coward, 20 Apr 2012 @ 1:36pm
  
  Re:
  I bet you're the same AC being a sore loser in the comments of the iiNet. If you're not you two would get along well!
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- Anonymous Coward, 20 Apr 2012 @ 2:38pm
  
  Re:
  I hope the death penalty for corporate shills comes soon.
  [ link to this | view in chronology ]
- techflaws.org (profile), 20 Apr 2012 @ 11:13pm
  
  Re:
  Suck it up, buttercup, there is more coming.
  
  And they won't sell more because of it. Tough luck.
  [ link to this | view in chronology ]
- Anonymous Coward, 21 Apr 2012 @ 8:13pm
  
  Re:
  You first, sweetheart
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Ima Fish (profile), 20 Apr 2012 @ 1:18pm

Why doesn't Google simply pull Youtube out of Germany?
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- iamtheky (profile), 20 Apr 2012 @ 1:23pm
  
  Re:
  Moreover, why doesn't Google simply pull out of Germany?
  
  Cut em off first, negotiate second.
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  - hmm (profile), 20 Apr 2012 @ 5:22pm
    
    Re: Re:
    You mean the way Microsoft did?
    
    Heheh that was hilarious....shares in German companies have crashed to all time lows and the German government has seen its popularity drop by around 30%.
    
    Oh yeah and tens of thousands of Germans lost their jobs...all because of the copy maximalists....
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    - The Moondoggie, 23 Apr 2012 @ 12:15am
      
      Re: Re: Re:
      Ironic how copyright maximalist trash concluded that piracy kills jobs for millions every year. Then tehy get their way in Germany and lose all the same.
      
      Seriously, that says alot about Ip maximalist and their supporters: they're a bunch of crybabies that is ok withn hurting others for their own sakes. Typical.
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- Anonymous Coward, J.D., esq., 20 Apr 2012 @ 1:29pm
  
  Re:
  Probably because they know entertainment lawyers have to be employed even if they decide to practice law in entertainment.
  
  Entertainment lawyers are entertaining, and being one can pay slightly better than bookies or a manager. But oh well...they decide to have an ego, and choose lawyering in entertainment got some reason. It's a dying industry to be in.
  
  Soon I would suggest they move into insurance lawyering or accident lawyering. :-)
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  - hmm (profile), 20 Apr 2012 @ 5:22pm
    
    Re: Re:
    Entertainment lawyers CAN be employed....I seem to remember the romans having some sort of fights involving lions......
    [ link to this | view in chronology ]
    - Anonymous Coward, 21 Apr 2012 @ 8:19pm
      
      Re: Re: Re:
      And McD's is always hiring.
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Richard (profile), 20 Apr 2012 @ 1:24pm

Comparing a keyword filter to ContentID is like comparing a human strapping on wings to a modern fighter plane. One of them works and can actually get the job done. One of them just makes you look like an idiot.

Bad analogy.

Yves Rossi does not look like an idiot - unlike GEMA!
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usul_of_arakis (profile), 20 Apr 2012 @ 1:27pm

Oh put a plaster on it, there the bleeding's stopped. Not fixed the broken leg though, sorry.
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PlagueSD (profile), 20 Apr 2012 @ 1:37pm

Comparing a keyword filter to ContentID is like comparing a human strapping on wings to a modern fighter plane. One of them works and can actually get the job done. One of them just makes you look like an idiot.

http://www.youtube.com/watch?v=GYW5G2kbrKk

Even though the video is admittedly fake, he still looks cool.
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- Atkray (profile), 20 Apr 2012 @ 1:51pm
  
  Re:
  ...so does this mean that fighter planes are idiotic?
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- Anonymous Coward, 21 Apr 2012 @ 8:39pm
  
  Re:
  No... no, he doesn't...
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Anonymous Coward, 20 Apr 2012 @ 1:39pm

most people are of the same mind over this. pull YouTube outta Germany and see what the reaction is. i bet it wont be a favorable one. GEMA and the rest of the entertainment industries could find themselves just as disliked over this as they were over ACTA etc!
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- Anonymous Coward, J.D., esq., 20 Apr 2012 @ 1:50pm
  
  Re:
  But the same day they pull out, they should publicly send a proposal including the prices of "custom coding" including a second platform and Internet hosting to GEMA in case Germany wants YouTube Back.
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The Devil's Coachman (profile), 20 Apr 2012 @ 1:48pm

Germans seem to prefer powerful controlling authorities
At least that's what their history demonstrates. So they are getting what they want. Not what is right, but what they want. To be told what to do by a powerful controlling authority, thus relieving them of personal responsibility and decision making. Just like right here in the good old USA.
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- techflaws.org (profile), 20 Apr 2012 @ 11:16pm
  
  Re: Germans seem to prefer powerful controlling authorities
  Bullshit. We're just as fed up with stupid and corrupt politicians that get bought with lots of money the industry still has (despite all their alleged losses).
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- Anonymous Coward, 21 Apr 2012 @ 4:19am
  
  Re: Germans seem to prefer powerful controlling authorities
  And what historic event do you base your assumption on? Tsk, tsk... Most people would rather follow than lead. Every nation has their share of sheeple and Germany is no different in this regard.
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Zoe.LeelA, 20 Apr 2012 @ 2:32pm

The List
The Gema fought for twelve songs wich are not even close to contempary pop context.From old Folk songs-one song is a traditionell caribean song,not even close to his self named copy holder Frank Farian and the others are german,eurotrash songs.Wow,three yrs of secret trades for songs,noone in germany will ever miss on radio,tv or online.Great sucess dear Gema.
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Anonymous Coward, 20 Apr 2012 @ 2:34pm

I hope Youtube blocks German IP to make a point.
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KlaraLicht (profile), 20 Apr 2012 @ 2:38pm

Word filter
Interesting is also that the German court decided on word filters without actually getting an expert report on this as a US court would have done. So German judges feel competent to evaluate technical questions like this themselves ...
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I Love Mike M!, 20 Apr 2012 @ 2:45pm

FOOOOOK OFF as the Irish Say...
I'm with Mike. Nobody is going to stop us from copying other peoples work. I like my MP3's FREEEEEE BABY! And Movies? Why pay for them when you can download them???? And who needs to pay for software or operating systems? Just download em? It's all FREE MAN!

YAAAHOOOOOOO....
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- Anonymous Coward, 21 Apr 2012 @ 8:40pm
  
  Re: FOOOOOK OFF as the Irish Say...
  Yes ignore the potential to get paid for free content, whoooah man, radical, almost, migraine inducing
  
  dont let that headache hit you on the way out
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CN, 20 Apr 2012 @ 2:48pm

Agree. Block Germany.
Agree. Block Germany, with a nice little note stating how to contact GEMA if they are displeased about it.
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Anonymous Coward, 20 Apr 2012 @ 2:57pm

'this particular court, in Hamburg, is somewhat notorious for siding with copyright holders'

the reason for this is the judge(s) dont have to have any knowledge of how the Internet works or any knowledge of copyright. listening quietly to the entertainment industries bullshit, then agreeing with it, is so much easier than trying to decipher what is right and what isn't and then making a ruling based on the law!
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- hmm (profile), 20 Apr 2012 @ 5:25pm
  
  Re:
  It's also much easier for the judge to take 10's of thousands of euros in backhanders from various copyright holders than to not....
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Rapnel (profile), 20 Apr 2012 @ 3:17pm

I hate GEMA.
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Anonymous Coward, 20 Apr 2012 @ 5:48pm

Only one thing to do then.

Find out the list of keywords, make public domain films, upload them to YouTube, then demand explanations from GEMA why the videos were taken down.
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Anonymous Coward, 20 Apr 2012 @ 5:59pm

People can start putting song names in tags, just to make GEMA abuse the system, and get called out on it.
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techflaws.org (profile), 20 Apr 2012 @ 11:18pm

As a funny aside, Germany's clueless dpa (similar to the US's AP) posted a story in which Youtube won and most outlets repeated it without prior verification.
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Anonymous Coward, 21 Apr 2012 @ 1:48am

GEMA is going to find out the hard way it needs youtube more than youtube needs its content.

The easy and safest solution for youtube is to ban all GEMA uploads, even those by GEMA.
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Anonymous Coward, 21 Apr 2012 @ 2:34am

Actually it should be quite simple the decision goes against a decision made by the EU court of Justice, prohibiting filtering. Now the only question for Youtube that needs to be answered is whether EU court ruling supersede German ones. If that is the case, I am not sure if Youtube actually has to follow the judgement, considering it cannot be forced into doing something illegal.
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Squig (profile), 21 Apr 2012 @ 10:43am

PPDE thanks
Well, it is basically a court campaigning for the Pirate Party (or the Greens) and copyright reform.
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Anonymous Coward, 22 Apr 2012 @ 12:35pm

Avatar.2009.1080p.BluRay.DTS.x264-ESiR.mkv
Now CISPA will shutdown techdirt.
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Emil, 22 Apr 2012 @ 4:26pm

ContentID system
Here is a case study with ContentID and YouTube. The system is already so unworkable that it blocks videos for pretty much no known reason.

A friend of mine is a member and webmaster of a local karate club. He wanted to upload a video of a recent competition on YouTube, but the video was repeatedly blocked because some unknown company "R.I." claimed copyright infringement. Nowhere did it say what it claimed copyright about. Indeed, in the end my friend got so annoyed that he completely removed audio from the film. BUT! It was still blocked for infringement! It was a video captured with a private video camera with no sound, and still it gets flagged. It is impossible to get any additional information about the alleged infringement as the "R.I." is not sufficient information to determine anything.

And they want to make the system even worse in Germany? They are truly insane.
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Hans, 13 Aug 2012 @ 8:58am

VPN
I�m from Germany and I�m really pissed off because of this GEMA shit we have here. This is a very big step into CENSORSHIP people! I can`t even get on YouTube without a VPN anymore. BTW, I`m using http://www.sunvpn.com/ to bypass these ridiculous restrictions we have here, and with ACTA just around the corner I`m seriously thinking about using a VPN all the time I`m online...
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Mike P, 13 Nov 2012 @ 10:56am

Youtube & GEMA
Why doesn't Google sue GEMA in the USA for loss of expected revenue, say to the tune of 60 million dollars, that would clear the air! We in Germany all suffer for this, as some 70% of all music is banned over youtube. This is being done to cover the massive overheads that GEMA has.
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