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German Court Says YouTube Isn't Liable For Infringement, But Wants A Notice-And-Staydown Process

from the that's-troubling dept

Thu, Jul 2nd 2015 3:52pm — Mike Masnick

YouTube and the music collection society GEMA have been at war for many years. Five years ago, I was at Berlin Music Week and it was one of the major points of discussion. YouTube was blocking all music videos, since GEMA insisted that YouTube should pay rates on par with digital sales (iTunes) rates for each play. Musicians I met with in Germany were furious at GEMA's obsessive control over their own music -- with one musician even showing me how he had an official website that GEMA was aware of, and an "unofficial" website his band showed to fans, which offered up free music (something GEMA refused to allow). The various court rulings in the case have been a mixed bag with some finding YouTube liable for user uploads, and even saying that YouTube needs to put in place a keyword filter.

German Courts also haven't been too happy with YouTube's custom message for (accurately) explaining why so much music is blocked in Germany. While YouTube and GEMA have tried negotiating a deal (as collection societies in basically every other country have done), in Germany it never seems to happen.

The latest ruling, in one of the key court cases is an appeals court ruling that upholds the lower court ruling saying that YouTube is not liable for infringing uploads by users and doesn't have to proactively search for infringing content. This is good. But, the court also appears to suggest that YouTube's ContentID is not enough -- and suggests it supports a sort of "notice and staydown" kind of system:

“However, if a service provider is notified of a clear violation of the law, it must not only remove the content immediately, but also take precautions which ensure that no further infringements will be possible.”

While that may appear reasonable at first glance, in practice it's a mess. The only way to even try to do that is to over-aggressively block any and all uses of that particular work -- which will undoubtedly lead to overblocking. Song playing in the background? Blocked. Parody video? Blocked. Algorithm not sure? Blocked.

A more detailed ruling is expected in a few weeks, but this seems like a mixed bag.

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Filed Under: contentid, copyright, germany, liability, monitoring, music, staydown, takedown, youtube
Companies: gema, google, youtube

25 Comments

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Anonymous Coward, 2 Jul 2015 @ 4:03pm

School of unintended consequences. Google is forced to prevent anyone from further infringement. Therefore after notification Google dispatches a hunter killer bot to destroy the rights holder therefore opening the content up for future use.
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Anonymous Coward, 2 Jul 2015 @ 4:17pm

A few things
First the notice Youtube (YT) used did imply that it was the fault of the GEMA and not theirs. Because the GEMA does have to offer a license to everyone that was in a way kind of wrong.

Second, no artist/musician is forced to sign with GEMA. A friend is like that group you met, complaing about the GEMA which is of course a valid point but she didn't have to sign with them in the first place.

Third, the whole GEMA situation is way more f'ed up than anyone outside Germany can imagine. You create music but aren't with GEMA? Well, until proven otherwise you are with GEMA. This let to some (from my point of view) weird cases in which musicans who published under CC license had to pay fees to GEMA because they couldn't or didn't want to prove that they aren't with them. (german expression is "GEMA vermutung")
But rather recently a 2nd company formed that is like GEMA the C3S ( https://www.c3s.cc/en/ ) so there is hope.

Fourth and last, whenever you read something about anything related to the internet or copy right and it starts with "A court in Hamburg, Germany" you know it is some crazy stuff. Research it if you like but the court in Hamburg is known to be very, not sure how to say this, I guess you could describe it as basicly if a person that reads this site thinks "that's a bad idea" this court will say "great idea!"
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Anonymous Coward, 2 Jul 2015 @ 4:31pm

Re: A few things
Forgot a point so...
Fifth, the reason the whole Youtube-Gema thing didn't get resolved was iirc because Gema wanted to be paid for every view no matter how much of a video you loaded and/or watched. 10 sec of a 3 min music video? Pay the full price for that.
Youtube on the otherhand said (also iirc) that they'd only pay for full views or views that counted in the "views" counter, not sure on that one.

Anyway, wondering how much YT should pay?
"in case of high interactivity of the service EUR 0.
00375 per stream"

https://www.gema.de/fileadmin/user_upload/Musiknutzer/Tarife/Tarife_VRA/tarif_vr_od9e.pdf

That s 3.75 Euro for 1000 streams. I really don't know how much that is for YT in % of their earning but it kind of seems a bit too much. A german streaming site which has a Gema license has ads all over the place plus mandatory pre video ad.
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Anonymous Coward, 2 Jul 2015 @ 4:42pm

GEMA should be ashamed of themselves. They want the content removed but they don't want to put in the work to remove that content. Youtube has the Content ID system but they don't want to waste time with using the system because that means they'll have to become directly involved and that screws up their plans because they want Google to be 100% responsible.

GEMA sucks BUTTCRACK.
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That One Guy (profile), 2 Jul 2015 @ 4:46pm

'I will make them an offer they cannot refuse'
Your second and third points seem to directly contradict each other. First you say that artists don't have to sign with GEMA, and then you say that even if artists don't, GEMA still treats them(and their music) as though they did.

In a situation like that, I imagine most who sign with them, assuming they're smart enough to do their research on the matter, do so not because they want to join GEMA, but because they feel they have no option not too. Either join and maybe get the 'benefits' of doing so, along with the downsides, or don't join, and only have the downsides.
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Anonymous Coward, 2 Jul 2015 @ 4:55pm

Re: 'I will make them an offer they cannot refuse'
"Your second and third points seem to directly contradict each other."

Well, yes that is kind of the problem. But even if you join Gema you might only have the downside because you could end up paying more than you earn. Yes weird as well but also some articles were written about that.

The "key" the Gema uses to pay their artists is so complex, strange that only the top artists earn money. If you don't meet certain criteria (from what I heard) you have to pay them more than they pay you and because they own all the rights to your music you can't do anything about it.

That's why I said the whole "f*ed up" thing. Also that is why the C3S is so important. Because the whole thing is based on the assumption that there is only Gema. But if there is a 2nd company with the same influence than the law might have to be rewritten.
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That One Guy (profile), 2 Jul 2015 @ 5:00pm

Re: Re: 'I will make them an offer they cannot refuse'
Oh that's not just a GEMA trick, the US collection agencies pull that stunt too, where they'll 'collect' for everyone's music, but only pay out to the top acts, leaving everyone else screwed.

Hopefully a separate collection agency will help, but given past actions in the courts in Germany, which seem to bend over backwards to give GEMA anything and everything they ask for, i can't help but think the 'competition' will be hamstrung somehow, and/or GEMA will still demand to be paid for everything regardless.
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Anonymous Coward, 2 Jul 2015 @ 5:03pm

Re:
Yes and no.
They should be ashamed but moneyz!

They might use the Content ID system but that doesn't change the problem. A court ruled only 12-20 songs have to be banned from Youtube. But Gema owns almost all the rights to all songs in Germany (German and foreign). Which means even if Youtube decided to block only those few songs they might open up the space for a lawsuit against all those other songs. That could mean that they have to pay for them after the fact which could lead to some serious amount (serious in Google units).
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Anonymous Coward, 2 Jul 2015 @ 5:07pm

Re: Re: Re: 'I will make them an offer they cannot refuse'
Nice, good to know that not only Germany is screwed... somehow nice.

And about the seperate collection agency (thx for that description), they do ran into some problems because they aren't as big as Gema yet. It is kind of hard to make a point infront of a court if you only have 2-3% of artists on your side. But hey, at least it's a start and maybe in 10-20 years we will finally get rid of that sh...stuff.
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Anonymous Coward, 2 Jul 2015 @ 7:16pm

While that may appear reasonable at first glance, in practice it's a mess. The only way to even try to do that is to over-aggressively block any and all uses of that particular work -- which will undoubtedly lead to overblocking. Song playing in the background? Blocked. Parody video? Blocked. Algorithm not sure? Blocked.

The rights of authors and artists? Violated. Masnick's concern about it? None.

Such a douche.
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nasch (profile), 2 Jul 2015 @ 8:05pm

Re:
Therefore after notification Google dispatches a hunter killer bot to destroy the rights holder therefore opening the content up for future use.

In 70 years.
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That One Guy (profile), 2 Jul 2015 @ 9:40pm

Re:
The rights of non-authors and artists? Violated. AC's concern about it? None.

Such a douche.

Be careful what insults you fling, lest they be easily thrown right back in your face. 'Authors and artists' aren't the only ones with 'rights' to be violated, and while you may not care about the rights of the public, some of us most certainly do, and don't see 'Protect imaginary property rights at all costs' as an acceptable idea.
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Anonymous Coward, 2 Jul 2015 @ 10:28pm

Re:
So preventing artists' music from being played in Germany helps them how, exactly?
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PaulT (profile), 2 Jul 2015 @ 11:30pm

"which will undoubtedly lead to overblocking. Song playing in the background? Blocked. Parody video? Blocked. Algorithm not sure? Blocked."

Then, of course the flipside of that, which is that people will try to game the system by altering their actually infringing videos in ways that try to fool the filters. You see it already with some things - adding or removing parts of the song from the beginning, adding to the middle, altering tempo, adding filters. If YouTube have to account for all of these, this inevitably leads either to the filters being useless or leading to legitimate similar but original works being blocked - and I'm sure GEMA won't understand that their actions are leading 2 of their acts to block each others' videos, for example.

It sounds to me like a slightly more complex (but equally useless) version of the whack a mole game that's been played for the last decade to try and stop piracy. But, they've passed the work on to a third party and they can blame them when it fails. Much better than working in the world.
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PaulT (profile), 2 Jul 2015 @ 11:35pm

Re: A few things
"First the notice Youtube (YT) used did imply that it was the fault of the GEMA and not theirs. Because the GEMA does have to offer a license to everyone that was in a way kind of wrong."

I don't get your point here. The block is at the request of GEMA across all music they represent (as I understand it). If everyone is a defacto member of GEMA whether they like it or not (as you later claim), then how is this not GEMA's fault?
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MadAsASnake (profile), 3 Jul 2015 @ 3:55am

Might as well give GEMA what they want. Notice and stay down means everything gets taken down - even the stuff GEMA wants up. There can be no middle ground on that requirement. The current status does not in effect change and GEMA gets paid nothing either way.
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nasch (profile), 3 Jul 2015 @ 8:00am

Re: Re: A few things
If everyone is a defacto member of GEMA whether they like it or not (as you later claim), then how is this not GEMA's fault?

I think the point is that GEMA offered to license the music (on completely unrealistic terms), so it's not just GEMA's fault, it's a matter of both parties not having agreed on terms. Technically this is true.
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nasch (profile), 3 Jul 2015 @ 8:02am

Might as well give GEMA what they want. Notice and stay down means everything gets taken down - even the stuff GEMA wants up.

That could be dangerous though. If they agree to notice and stay down, they're basically saying they will keep that content down, and so if it slips through and gets back up somewhere, they could be extra super duper liable. If I were Google I would fight this to the end and then if I lost, consider whether I could afford to continue doing business in Germany. I wouldn't agree to notice and stay down except as a last resort.
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Anonymous Coward, 3 Jul 2015 @ 8:35am

Re:
The rights of people who wish to use Youtube to publish free content is being infringed because of GEMA assuming that all content should be paid for.
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Ninja (profile), 3 Jul 2015 @ 9:33am

Re:
Oh but Google has played that game before. They can set up an algorithm to filter stuff and play loosely when not sure. Overblocking? No problem, blame GEMMA with a precise notice ("this content is preemptively blocked due to judicial ruling X on behalf of GEMMA"). At some point Germans will be pissed enough. On the side lines Google should be pro-actively searching for other services to extend such ruling to them (fairnes, right?) to make German Internet completely unusable. Then we'll see how long this madness stands.
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Ninja (profile), 3 Jul 2015 @ 9:35am

Re:
It's ok, you can design an algorithm that plays somewhat loosely even if it means overblocking. Google already presents a heavily watered down version of Youtube in German soil so why not make it even less useful? As I said above they should actively and aggressively try to extend the ruling and the rest of the idiocy to every single service to the point it turns the Internet into some useless cat video platform (to paraphrase a common preconception).
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Anonymous Coward, 3 Jul 2015 @ 10:29am

Re: Re:
What Google should do if they haven't already done so is to completely block all German IP's from accessing YouTube. That way no one in Germany can upload any copyright infringing video to YouTube or view any copyright infringing video on YouTube and there will be no need for Google to implement any filtering as no one in Germany will be able to access YouTube.

GEMA should have no course to complain about people in Germany uploading/viewing copyright infringing videos on YouTube as people in Germany will not be able to access YouTube. Let's see how long it will be before GEMA starts to complain about loss of money due to people in Germany being blocked.
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Anonymous Coward, 3 Jul 2015 @ 11:35am

Re:
School of unintended consequences. Google is forced to prevent anyone from further infringement. Therefore after notification Google dispatches a hunter killer bot to destroy the rights holder therefore opening the content up for future use.

Content mafia foresaw that scenario and is prolonging copyright repeatedly such that it never expires, making this strategy unfeasable.

That's right. If copyright wasn't eternal, all creators would just be killed and we'd have no music at all.
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Anonymous Coward, 3 Jul 2015 @ 11:57am

Re: Re: Re: A few things
"I think the point is that GEMA offered to license the music (on completely unrealistic terms), so it's not just GEMA's fault, it's a matter of both parties not having agreed on terms. Technically this is true."

Basicly, this. The Gema offered a license and YT didn't like it. The original message said something like the the Gema didn't grand the license so it kind of was false. YT didn't like the terms that were offered/presented by Gema.

And those terms might be unreasonably of course but for that statement I do not know enough about the income per view.
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PaulT (profile), 4 Jul 2015 @ 2:24am

Re: Re: Re: A few things
Technically, yes, but it's only an acceptable answer if you dismiss the reality of the situation. Which, I suppose, is standard operating procedure for these things.
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